Wrongful Termination Cases

LeGENDRE v MONROE COUNTY Docket No. 194647. Submitted November 18, 1997, at Lansing. Decided April 2, 1999, at 9:15 A.M. Terrie J. LeGendre and Nancy M. Feick, former Monroe County assistant prosecutors, brought an action under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., against Monroe County and the Monroe County Prosecutor after they were not reappointed as assistant prosecutors and not offered other employment with the county. LeGendre alleged gender discrimination and retaliation for filing civil rights complaints with the Equal Employment Opportunity Commission and the Michigan Department of Civil Rights. Feick raised the same allegations made by LeGendre and further alleged age discrimination and raised issues concerning political activity and affiliation. Both plaintiffs alleged that they suffered embarrassment, mortification, humiliation, and outrage as a result of the claimed discriminatory acts of the defendants. The court, Timothy P. Pickard, J., granted a motion by the defendants for severance of the plaintiffs’ actions. After LeGendre asserted the physician-patient privilege in declining to answer the defendants’ interrogatories about her medical history, including psychiatric care, if any, the court granted defendants’ motion under MCR 2.314 to preclude her from presenting evidence about her medical history or mental or physical condition as they relate to the claim of mental distress. After LeGendre failed to comply with a discovery order to produce medical records related to a physical injury for which she received disability insurance benefits while employed in the prosecutor’s office, the court dismissed her action. LeGendre appealed. The Court of Appeals held,-. 1. The trial court did not abuse its discretion in granting the defendants’ motion for severance. Different proofs would be required to establish each of the plaintiffs’ cases in light of differences in their backgrounds, levels of experience, length of employment in the prosecutor’s office, and positions held in the prosecutor’s office. Feick also raised claims that were not raised by LeGendre. There was great potential for jury confusion and prejudice against the defendants had the claims not been severed. 2. The trial court did not err in precluding LeGendre from presenting evidence of her medical history or mental or physical condition. Administrative Order No. 1996-4 constrains this panel of the Court of Appeals to follow the holding in Hyde v Univ of Michigan Bd of Regents, 226 Mich App 511 (1997), that allegations of ordinary mental distress by a plaintiff in an employment discrimination case place the plaintiff’s mental condition in controversy and, thus, make it open to discovery pursuant to MCR 2.314. MCR 2.314(B)(2) provides that, unless the court orders otherwise, if a party asserts that medical information is subject to a privilege and the assertion has the effect of preventing discovery of medical information otherwise discoverable under MCR 2.302(B), the party may not thereafter present or introduce any physical, documentary, or testimonial evidence relating to the party’s medical history or mental or physical condition. Were it not for Hyde, the Court would hold that the mental condition of a party is in controversy for purposes of MCR 2.314 when there is a separate tort claim for emotional distress, the plaintiff alleges that the plaintiff suffers from a severe ongoing mental injury or a psychiatric disorder, the plaintiff will offer expert testimony to support the claim, or the plaintiff concedes that the plaintiff’s mental condition is in controversy. Because none of these situations is involved in this case, the Court, were it not for Hyde, would reverse the order precluding the plaintiff from introducing evidence supportive of her claim of emotional distress. 3. The trial court abused its discretion in dismissing LeGendre’s action for her failure to comply with the discovery order for the production of medical records related to her disability claim. An in camera hearing is the appropriate vehicle to determine whether the information requested was protected by the physician-patient privilege as contended by LeGendre. The case must be remanded for such a determination. Orders of severance and preclusion of LeGendre from presenting evidence regarding emotional distress affirmed; order of dismissal vacated; case remanded for in camera hearing regarding whether disability medical records are subject to privilege. 1. Trial — Severance. A court may grant a motion for separate trials to avoid prejudice or for convenience, expedition, or economy; although a ruling regarding such a motion is reviewed on appeal for abuse of discretion, severance should be ordered only upon the most persuasive showing that the convenience of all the parties and the court requires it (MCR 2.505[B]). 2. Peetrial Procedure — Discovery — Remedies — Appeal. The Court of Appeals reviews for abuse of discretion a trial court’s decision to dismiss an action or impose sanctions for the plaintiff’s failure to permit discovery. 3. Pretrial Procedure — Discovery — Privileged Information — In Camera Hearings. An in camera hearing is the appropriate vehicle to determine whether information requested in discovery proceedings is protected by a statutory privilege. Green & Green (by Christine A. Green), for Terrie J. LeGendre. Cummings, McClorey, Davis & Acho, P.C. (by Suzanne P. Bartos and Thomas J. Laginess), for Monroe County. Johnson, Rosati, Galica, LaBarge, Aseltyne & Field, P.C. (by Laura A. Amtsbuechler and Marcelyn A. Stepanski), for Monroe County Prosecutor. Before: Hood, P.J., and McDonald and White, JJ. Per Curiam. In this sex discrimination and retaliation case brought under the Civil Rights Act (cra), MCL 37.2101 et seq.; MSA 3.548(101) el seq., plaintiff appeals as of right from the circuit court’s orders severing plaintiff’s case from that of a coplaintiff; precluding plaintiff from presenting evidence relating to her psychological, emotional, or physical condition in support of her claims for noneconomic damages; and granting dismissal in favor of defendants. We vacate the circuit court’s order of dismissal and affirm its order severing the cases. Regarding the order precluding plaintiff from presenting evidence relating to her psychological, emotional, or physical condition, we disagree with, but must follow, Hyde v Univ of Michigan Bd of Regents, 226 Mich App 511; 575 NW2d 36 (1997), under Administrative Order No. 1996-4, and therefore affirm. Were it not for Hyde, we would reverse the portion of the order precluding testimony regarding plaintiffs ordinary psychological or emotional distress and remand for further proceedings consistent with this opinion. Plaintiff and Nancy M. Feick, initially a coplaintiff in this case, were attorneys in the Monroe County Prosecutor’s Office. Feick was hired by the prosecutor’s office in 1985 and plaintiff was hired in 1991. In January of 1991, Feick was promoted to chief assistant prosecutor by then-prosecutor William Frey. Defendant Edward F. Swinkey was elected Prosecuting Attorney of Monroe County in the 1992 election. Plaintiff had run against him. Plaintiff and Feick were the only two women working in the Monroe County Prosecutor’s Office when Swinkey took office. Plaintiffs and Feick’s employment ended on December 31, 1992, when Swinkey did not reappoint them. Two male assistant prosecutors were also not reappointed by Swinkey. Plaintiff and Feick filed complaints with the Equal Employment Opportunity Commission (eeoc) and the Michigan Department of Civil Rights (mdcr), claiming that Swinkey fired them because of their gender. Subsequently, plaintiff applied for an assistant prosecutor position and was granted an interview. During the interview, Swinkey questioned plaintiff about her discrimination charges and warned her that what she had said would be held against her. Swinkey hired a female applicant who had not yet passed the bar examination to fill the position. During the summer of 1993, plaintiff was offered the position of Special Prosecutor for Domestic Affairs for Monroe County, but only when she agreed to withdraw her discrimination charges. Plaintiff left that position at the end of 1993. In December of 1993, plaintiff applied for a position as a Monroe County Juvenile Court Referee, but a male was hired for the job. In the scant excerpts of plaintiffs deposition before us, plaintiff testified that she left the position of special prosecutor for domestic affairs after only six months because of a difference of opinion with a supervisor, John Pace, regarding her being on disability. Plaintiff testified that her doctor had told her that she could go back to work part-time following foot surgery. She testified that she was teaching at a community college at the time and had done so for the preceding four years. Plaintiff testified that she approached Pace regarding working part-time until the end of the college semester, which was in six weeks, and said that she would then return to work full-time. Plaintiff testified that Pace told her that if she could not work full-time as a prosecutor, she could not teach at the college. Plaintiff testified that classes at the college were starting that day, that she could not leave the college without an instructor, and that she therefore left the prosecutor’s position. Plaintiff believed she had been treated discriminatorily by her supervisor because a male co-worker had been allowed to take a great deal of disability time off and hold an outside job without reprisal. Plaintiff received disability payments after her foot surgery, but refused to divulge the amount at deposition, asserting the physician-patient privilege. Plaintiff and Feick filed their complaint on July 14, 1995. They alleged that defendants’ actions regarding their employment violated the cra, as well as their right to equal protection guaranteed by Const 1963, art 1, § 2. The complaint alleged that defendants fired and refused to rehire them because they were female, because of Feick’s age, and in retaliation for their civil rights complaints to the EEOC and the MDCR. It further alleged that they “each suffered injuries, all of which are continuing in nature,” including embarrassment, mortification, humiliation, and outrage. Before discovery began, Swinkey filed a motion to sever plaintiff’s and Feick’s claims, pursuant to MCR 2.505(B), 2.206, and 2.207, with which Monroe County concurred. The circuit court granted defendants’ motion, severing the cases for discovery as well as trial. After both defendants filed motions to compel plaintiff and Feick to answer interrogatories, the parties stipulated that plaintiff and Feick would produce the interrogatory answers within ten days. Plaintiff and Feick served answers to Swinkey’s interrogatories within the stipulated time, but both responded to the following interrogatories with the answer “Plaintiff objects to this interrogatory for the reason that it calls for privileged information.” 14. Have you treated with or consulted with any psychologist, psychiatrist, social worker, clergyman or other professional regarding the mental distress alleged in your Complaint? 15. If you [sic] response to the proceeding [sic] interrogatory was in the affirmative, please state: (a) The name and address of each and every such person visited; (b) The dates that you consulted with, or treated with each and every such professional; (c) Please complete, sign and return the enclosed authorization from [sic] for each and every such person. 16. List chronologically with dates, the names and addresses of all doctors, psychiatrists, psychologist or social workers whom you have seen or with whom you have consulted from January 1980 to present; the nature of the ailment or other reason for which each doctor was consulted and the treatment on each occasion. 17. Give the names and address of all hospitals, including psychiatric, where you have been either and [sic] in-patient or an out-patient during yo [sic] entire life and as to each hospital, give: (a) Date of admission and discharge; (b) Nature of the ailment or illness for which you were hospitalized; (c) Name and addresses of any attending physicians. The interrogatories also asked the foüowing question regarding physical injury: 18. Do you allege any physical injury as a result of the incidents alleged within your Complaint? If so, set forth the exact nature of all present physical complaints which you allege are attributable to the incidents complained of. ANSWER: No. 19. If you have been hospitalized or treated by a doctor or, [sic] medical professional by reason of this incident, list the names and addresses of all such hospitals, doctors clinics or other medical institutions with which you were a patient as well as the date of confinement in any hospital. ANSWER: Not applicable. 20. Have you discussed this case with any potential expert witnesses or do you intend to expect to call an expert to testify on your behalf as the time of trial?. . . . ANSWER: No. Swinkey filed a motion to preclude plaintiffs from presenting evidence of their physical and mental damages at trial pursuant to MCR 2.314(B)(2) so that he would not be “sandbagged” with unknown and unforeseen information. Monroe County concurred in Swinkey’s motion. At the beginning of the hearing regarding Swinkey’s motion, the circuit court requested that separate complaints be filed because it had not received them after entering its order to sever. Plaintiff’s counsel asserted that plaintiff had not put her physical and mental conditions in controversy simply by alleging embarrassment, mortification, humiliation, and outrage, and further stated that plaintiff did not plan to present expert testimony at trial about any physical or mental injuries suffered. The circuit court granted defendants’ motion, stating: It appears from the court rule that when you invoke the privilege that the parties may not thereafter present or introduce any physical, documentary or testimonial evidence relating to the medical history, mental or physical condition of the Plaintiff who is complaining. And I can see a real pitfall to the Defendant if such a motion were not filed for the simple reason that if the testimony comes in at the time of trial that somebody was crying uncontrollably or demonstrating mental or physical stress and trying to relate it to the complaint against the Defendant without the ability to discover these facts there might be some other underlying cause for that emotional distress. So, therefore, I would grant the motion. Swinkey subsequently filed a motion to compel production of plaintiff’s disability insurance records pursuant to MCR 2.313(A)(2)(a). Swinkey had requested medical records related to plaintiff’s disability claim, but plaintiff refused to release them, asserting the physician-patient privilege. Swinkey alleged that plaintiff left the special prosecutor’s job because of her disability, not because of defendants’ threats that she would receive and keep the job only if she dropped her discrimination complaints or because she was forced to choose between employment by Monroe County or by the community college. Swinkey claimed that he needed the disability records to ascertain plaintiff’s ability to hold the special prosecutor’s job or find similar employment and so meet her obligation to mitigate damages. Swinkey also argued that any disability payments plaintiff received after resigning her position as special prosecutor for domestic affairs were a collateral source that defendants should be allowed to deduct from any wage-loss claim under MCL 600.6303(1); MSA 27A.6303(1), and that this information should be contained in the disability insurance records. Swinkey further argued that defendants believed plaintiff was on disability for a different reason before returning to work for the prosecutor’s office in the summer of 1993. He argued that it appeared that plaintiff made the disability claim before leaving the prosecutor’s office on January 1, 1993. At the hearing regarding Swinkey’s motion, Swinkey’s counsel argued that although plaintiff was now willing to answer questions regarding when she received disability and the records of payments received, and that the parties would stipulate an order requiring that she answer those questions and produce records of payment, plaintiff still refused to release the medical records contained in the disability records on the basis of privilege. Counsel asserted that the records were relevant to plaintiff’s ability and efforts to mitigate her damages incurred after leaving the friend of the court position in 1993. Plaintiff’s counsel argued that plaintiff’s medical condition was irrelevant, in that it was not necessary to know the specific medical condition to determine whether plaintiff was available for work because, if she received disability benefits, she was unavailable for work and could not obtain back-pay for those periods. Counsel argued that it was the fact of disability that was relevant, that plaintiff had agreed to provide that information, and that the court had already stricken noneconomic damages and plaintiff still insisted on her right of privacy. Counsel for Monroe County then suggested a compromise, i.e., that the court view the medical records in camera. Plaintiff’s counsel and Swinkey’s counsel agreed, noting: Ms. Amtsbeuchler [defense counsel]: That would be fine. I just want to make sure we are clear, I think there is more than one disability application. I think there may be three: one before she can [sic, came] to the prosecutor’s office: one while she was at the prosecutor’s office, after the time she found out she wasn’t going to be reappointed: and three, at the special prosecutor’s job. We think they are all relevant, whether it was foot surgery or some other condition. I guess the condition may or may not be important depending on what it is. We have no way of knowing until, obviously, somebody takes a look at them. And if the court is willing to do that, that’s fine. Plaintiffs counsel responded: If the Court is inclined to provide copies of the medical records to the Defendants, I think in fairness to the Plaintiff the Plaintiff should have the opportunity to dismiss the lawsuit rather than waiving that privilege. The Court: At this point I will not read the medical records in camera because I will not investigate this case and do the work of the attorneys. I will grant the motion that she either produce those [disability records including the medical records] or the case be dismissed. Plaintiff did not produce the records, and the court dismissed her case. This appeal ensued. i First, we disagree with plaintiffs argument that the circuit court erred in granting defendants’ motion to sever her claims from Feick’s. MCR 2.505(B) allows a circuit court to sever trials to avoid prejudice or for convenience, expedition, or economy. Hodgins v Times Herald Co, 169 Mich App 245, 261; 425 NW2d 522 (1988). Although we review for abuse of discretion a circuit court’s grant of a motion to sever, the decision to sever trials should be ordered only upon the most persuasive showing that the convenience of all parties and the court requires it. Id.; Jemaa v MacGregor Athletic Products, 151 Mich App 273, 278; 390 NW2d 180 (1986). Plaintiff’s claims arose from a different set of occurrences than Feick’s, except, possibly, Swinkey’s not reappointing them on December 31, 1992. See Jemaa, id. at 279. On that date, plaintiff was an assistant prosecutor and had worked for the prosecutor’s office for about one year, while Feick was chief assistant prosecutor and had worked for the prosecutor’s office for over seven years. Feick had more responsibility and more seniority than plaintiff. After not being reappointed, plaintiff and Feick applied for different positions

FRANZEL v KERR MANUFACTURING COMPANY Docket No. 201802. Submitted November 3, 1998, at Detroit. Decided March 30, 1999, at 9:00 A.M. Shirley Franzel brought an action in the Wayne Circuit Court against Kerr Manufacturing Company and Rebecca Leinen, Kerr’s vice president of human resources, alleging several claims as a result of Franzel’s second termination from employment. The court, Kay Tertzag, J., granted Leinen’s motion for summary disposition and dismissed the plaintiff’s claims of sexual harassment, hostile work environment sex discrimination, retaliation for attempting to oppose a violation of the Civil Rights Act, and intentional infliction of emotional distress. The jury considered the claims of wrongful discharge, sex discrimination in violation of the Civil Rights Act, and breach of contract for Kerr’s alleged violation of an unconditional offer to the plaintiff to return to work after her first termination from employment. The jury, specifically finding that the plaintiff was not an employee whose employment could be terminated for just cause only, found no wrongful discharge. The jury also found no sex discrimination, but did find that Kerr breached the contract between it and the plaintiff made before the plaintiff returned to work after her first termination from employment. The jury awarded the plaintiff damages but reduced the amount because of the plaintiff’s failure to mitigate her damages. Kerr appealed and the plaintiff cross appealed. The Court of Appeals held: 1. The plaintiff was entitled to only nominal damages for the breach of the at-will employment contract. The court erred in denying Kerr’s motion for remittitur, and that order must be reversed. 2. The jury did not find that the plaintiff had been an at-will employee before her first termination from employment or that following her reinstatement she was an employee whose employment could be terminated for just cause only. 3. The plaintiff was on notice when she signed the reinstatement contract that her employment was at will. 4. The court erred in admitting, over Kerr’s objection, a letter written by Kerr’s counsel to defendant Leinen. The letter was not intentionally presented to the plaintiff by Kerr’s counsel. An unprejudiced person reviewing the evidence would find no justification or excuse for the court’s decision to deny Kerr’s motion to suppress the evidence. The letter was improperly admitted and its contents created undue prejudice against Kerr. The admission of the evidence constituted error requiring reversal of the judgment with regard to the breach of contract claim. 5. The court abused its discretion in permitting an expert witness to testify that the plaintiff is a credible witness and in permitting the witness to testify with regard to matters outside the witness’ field of expertise. The expert witness should not have been allowed to testify with regard to evidence that was subject to the attorney-client privilege and that was erroneously admitted into evidence. 6. The court did not err in finding either no genuine issue of material fact regarding the claims of intentional gender discrimination, sexual harassment, retailiation for opposing a violation of the Civil Rights Act or the failure to state a claim regarding sexual harassment, gender discrimination by defendant Leinen, or intentional infliction of emotional distress. Those orders of summary disposition must be affirmed. Affirmed in part, reversed in part, and remanded. 1. Contracts — Employment at Will — Breach of Contract — Damages. The measure of damages for an employer’s breach of an employment contract involving an at-will employee is nominal damages. 2. Contracts — Damages. Neither mental distress damages nor exemplary damages are available in an action for breach of contract, even if the breach was malicious or wilful. 3. Master and Servant — Employment at Will. An at-will employment relationship is presumed where an employment agreement is silent regarding the type of employment relationship intended. 4. Witnesses — Experts — Opinion Testimony — Appeal. Whether a witness is qualified to render an expert opinion and the admissibility of an expert’s testimony are matters within a trial court’s discretion; an abuse of discretion will be found only if an unprejudiced person, considering the facts on which the trial court acted, would say there was no justification or excuse for the ruling. 5. Witnesses — Experts. The subject matter of an expert’s testimony should be directly related to and within the immediate scope of the witness’ expertise; a prerequisite to the admission of an expert’s testimony is a showing that the expert has knowledge in a particular area that belongs more to an expert than to the common man; an expert should not be permitted to express an opinion where the jury is in as good a position as the expert to determine intelligently the issue involved without enlightenment from the expert (MRE 702). 6. Witnesses — Experts — Work-Product Privilege. Facts known and opinions held by an expert are not work product, but the expert’s arrangement of those facts and opinions in a report, made in direct response to the inquiries of an attorney, is work product protected by the work-product privilege (MCR 2.302[B][4]). 7. Trial — Witnesses — Jury Trial — Witness Credibility — Expert Testimony. The jury is the sole arbiter of witness credibility in a jury trial; expert testimony regarding the credibility of a witness is improper in a jury trial. Allen J. Counard, P.C. (by Allen J. Counard), for the plaintiff. Kell & Lynch, P. C. (by M. V. Kell and Margaret A. Lynch), for Kerr Manufacturing Company. Before: Hood, P.J., and Griffin and Markey, JJ. Per Curiam. Kerr Manufacturing Company (hereafter defendant) appeals by right the jury verdict finding that while defendant did not wrongfully discharge plaintiff Shirley Franzel or commit sexual discrimination against her, defendant did breach the parties’ contract that formed the basis for plaintiff’s return to work in January 1987. Plaintiff cross appeals to determine whether the trial court erred in summarily dismissing plaintiff’s claims under the Civil Rights Act (cra) of intentional gender discrimination, MCL 37.2202(1); MSA 3.548(202)(1), hostile work environment sexual harassment, MCL 37.2103(1); MSA 3.548(103)(i), retaliation for attempting to oppose a violation of the CRA, MCL 37.2701; MSA 3.548(701), gender discrimination by defendant Rebecca Leinen, Kerr’s vice president of human resources, and her claim of intentional infliction of emotional distress. Plaintiff also cross appeals from the trial court’s refusal to enter an order of judgment including costs, attorney fees, or mediation sanctions. We vacate the judgment in favor of plaintiff and affirm regarding the cross appeal. FACTS Plaintiff worked as a sales representative, district manager, and metro market manager for defendant, a dental products manufacturer, from 1981 through July 1986, and again from January 1987 through May 1987. Plaintiff aspired to the position of regional manager, but allegedly defendant and a host of its employees were committed to preventing a woman from reaching upper management. Plaintiff claims that defendant began discriminating and conspiring against her after three January 1986 incidents at a national sales meeting in Marco Island, Florida, where two comments were made during a slide show that insinuated plaintiff had slept her way to her current position, and where another manager, who was vying for the same regional manager promotion, pinched her on the buttocks. Rick Amos, plaintiff’s supervising regional manager, terminated her employment in July 1986 for failing to satisfy the requirements of a February 1986 “performance improvement plan” (pip), also known as probation. In August 1986, plaintiff filed her complaint in state court against defendant Kerr, asserting claims of sexual harassment and sexual discrimination in violation of the CRA, breach of contract, wrongful discharge, negligent evaluation, and retaliatory treatment for filing the lawsuit, but the action was removed to the United States District Court for the Eastern District of Michigan on diversity grounds. After a lengthy trial before Judge Barbara K. Hackett, the federal court jury found that plaintiffs employment could be terminated for just cause only, but issued a verdict of no cause of action. The federal case was subsequently dismissed, however, when plaintiff filed a posttrial challenge to diversity jurisdiction and defendant did not oppose it. Thus, the parties refiled their pleadings in the Wayne Circuit Court and the instant lawsuit proceeded. Rebecca Leinen was also added as a defendant in the state court action. While her federal lawsuit was pending, however, defendant made plaintiff an unconditional offer to return to work. After negotiations, plaintiff agreed and signed a December 11, 1986, letter setting forth the conditions of her reinstatement, including the geographical territories she would service (which did not include the same successful Michigan accounts she had in the past), that Amos would no longer oversee her work, and that she was subject to annual reviews like all other district managers. From the outset, the problems that had plagued plaintiff before her first termination involving extremely late paperwork and expense reports began to reoccur, and plaintiff was again placed on a pip. When plaintiff refused a direct order to (1) retrieve from home some “documentation” that she claimed existed to rebut the allegations in her pip (and support many of the allegations she made against other employees who allegedly sexually harassed her and conspired against her), and (2) return to work with the documentation on the same day, she was suspended. Plaintiff then informed defendant that she could not return to work for medical reasons at the direction of her psychologist, but she refused to submit to an independent medical or psychological examination that defendant requested. Defendant once again terminated her employment, this time for insubordination. In the state court action, the trial court granted defendant Rebecca Leinen’s motion for summary disposition and dismissed plaintiffs claims of sexual harassment, hostile work environment sex discrimination, retaliation, and intentional Infliction of emotional distress. The jury was instructed with regard to the claims of (1) wrongful discharge, (2) sex discrimination in violation of the CRA, and (3) breach of contract for defendant’s alleged violation of the unconditional offer to return to work. The jury found no wrongful discharge (specifically finding that plaintiff was not an employee whose employment could be terminated for just cause only) and no sex discrimination, but it did find that defendant breached the contract between the parties that formed the basis for plaintiff’s return to work in January 1987. The jury awarded plaintiff $425,000 in damages but reduced that amount by $200,000 for failure to mitigate. Defendant appealed, and plaintiff cross appealed to this Court. i A First, defendant Kerr asserts that the trial court committed error requiring reversal in refusing to reduce the jury’s damage award to a nominal amount Defendant argues that the jury’s damage award was purely speculative and that plaintiff was entitled to only nominal damages under Sepanske v Bendix Corp, 147 Mich App 819; 384 NW2d 54 (1985), and Environair, Inc v Steelcase, Inc, 190 Mich App 289, 293; 475 NW2d 366 (1991). These cases support the proposition that even if defendant breached its contract with plaintiff regarding her return to work, nothing in the contract ensured her continued employment because, as the jury found, she was an at-will employee, not an employee whose employment could be terminated for just cause only. Notably, neither mental distress damages nor exemplary damages are available in an action for breach of contract, even if the breach is malicious or wilful. Walker v Consumers Power Co, 824 F2d 499, 504-505 (CA 6, 1987); Valentine v General American Credit, Inc, 420 Mich 256, 259-263; 362 NW2d 628 (1984). We find that plaintiff was entitled to only nominal damages for breach of the at-will employment contract and the trial court erred in denying defendant’s motion for remittitur. In Sepanske, supra at 828-829, this Court affirmed the proposition that the breach of an at-will employment contract entitles the employee to receive only nominal damages because, regardless of the contract terms, the employee had no reasonable expectation of continued employment. In that case, plaintiff Sepanske returned to work after taking a company-approved social service leave of absence but was placed in a different job in a different department, contrary to company policy guaranteeing reinstatement to a former position or one of equal or greater responsibility. The defendant’s personnel manager had also given Sepanske a letter stating that Sepanske was “ ‘scheduled to return to [his] former position’ ” upon completion of his social service leave. Id. at 823. The jury found that Sepanske’s responsibilities regarding his new job were neither greater than nor equal to those regarding his former job, and awarded him $75,206 in damages for future lost earnings. Id. at 824-825. This Court vacated the jury’s damage award and remanded to the district court for entry of a judgment in Sepanske’s favor “for nominal damages only.” Id. at 829. The Court stated: We take an entirely different approach [than the parties] on the issue of damages. We think that plaintiff was entitled to nominal damages only for defendant’s breach of the employment contract. This is not a case of wrongful discharge. Plaintiff’s expectation under the contract was to be restored to his old job or to an at-will position which was equivalent to or better than his position in pension and payroll, but he had no actionable expectation that any such restoration would be permanent. The position was still at will—one which the employer was free to alter or terminate without consequence. The fact that defendant historically had not arbitrarily reclassified positions or terminated employees does not change its right to do so. . . . The jury’s damage assessment in such a situation amounts to pure speculation. There is no tangible basis upon which damages may be assessed where plaintiff’s eccpectation was for an at-will position which could have been changed or from which he could have been terminated without consequence. See Sax v Detroit, G H & M R Co, 129 Mich 502, 506; 89 NW 368 (1902). [Id. (emphasis added).] This Court recently reiterated that Sepanske should not be extended beyond breach of contract actions where at-will employees are entitled to only nominal damages. Hord v Environmental Research Institute of Michigan, 228 Mich App 638, 643-644; 579 NW2d 133 (1998). In Environair, supra at 293-294, we stated that while Sepanske involved an employment relationship, its holding regarding the speculative nature of damages was equally applicable to nonemployment, at-will contractual relationships (e.g., exclusive sales contracts). Our Supreme Court has not affirmatively endorsed Sepanske, but the Court has discussed its holding, if only to distinguish it from a case being considered. In Phillips v Butterball Farms Co, Inc (After Second Remand), 448 Mich 239, 251, n 31, 253; 531 NW2d 144 (1995), the Supreme Court found Sepanske inapplicable where the plaintiff sued her employer in tort for worker’s compensation retaliatory discharge. After quoting pertinent parts of the Sepanske opinion as set forth above, the Supreme Court merely stated that “[t]he claim in Sepanske, however, was premised on breach of contract, not a separate tort.” Id. at 253. Accord Sax, supra at 506; Mallory v Jack, 281 Mich 156; 274 NW 746 (1937) (future damages may not be awarded under employment contracts terminable at will). Notably, the Sax Court stated: There is no foundation for even a guess by a jury upon either question of fact [regarding when the employment contract would end and when it in fact ended], because either could terminate the contract at will, and it was equally impossible to tell how much of the time [the plaintiff, a train brakeman who was injured and subsequently rehired,] would be employed. The jury were [sic] turned, loose into afield of pure speculation and conjecture, without any practical or tangible basis upon which to assess damages. Under such circumstances, none can be assessed. [Sax, supra at 506 (emphasis added).] Plaintiff offers no case law support contrary to Sepanske; rather, she merely emphasizes Judge Shepherd’s position in his dissenting opinion in Sepanske that because the defendant could have fired the plaintiff at any time, it did not mean that the defendant was likely to fire him. Sepanske, supra at 832. In his dissent, Judge Shepherd also argued that public policy and fairness favor placing the burden of proof on the defendant to show that in fact the plaintiff would have been discharged, particularly given that the plaintiff in Sepanske was providing a public service on the defendant’s behalf while on leave before the employment relationship ended. Id. at 833. We find these arguments unpersuasive. B Plaintiff also argues that the reinstatement “contract” between plaintiff and defendant dated December 11, 1986, constituted an employment contract that was terminable for just cause only. Plaintiff asserts that the jury’s special verdict form evidences that the jury found plaintiff to be an at-will employee during her first term of employment but not during her reinstatement. A quick review of the jury’s special verdict form disproves this argument. The following are the questions and the jury’s responses to the special verdict form: Count i: Do you find that Plaintiff has proven by a preponderance of the evidence that the employment relation ship between the Plaintiff and Defendant was such that Plaintiff would not be discharged except for just cause? NO Count n: Do you find that Plaintiff has proved by a preponderance of the evidence that one of the reasons she was discharged was because of her sex? no Count III: Question 1: Do you find that Plaintiff has proved by a preponderance of the evidence that Defendant breached the contract which Plaintiff and Defendant entered into upon her return to work? yes Question 2: Do you find by a preponderance of the evidence that Plaintiff suffered damages as a result of the breach of contract? yes Damages: Question 1: If plaintiff suffered damages, what is the amount of damages you award to Plaintiff? Count ill, Breach of Contract, $425,000 Question 2: Did Plaintiff make a reasonable effort to minimize her damage? NO By what amount do you find the award of damages will be reduced? $200,000 [Emphasis added.] Cleaxly, nothing in the language of the special vexdict foxm xegaxding count I limited the question of at-will ox just-cause employment to eithex plaintiffs first ox second period of employment. c Plaintiff further argues that the language of the reinstatement contract itself establishes the just-cause nature of the employment relationship. A review of the pertinent language in the reinstatement contract that plaintiff signed supports a contrary view: 1. Kerr will unconditionally reinstate you to the position of District Manager within the Michigan market effective January 5, 1987. 2. You will be reinstated at your former salary of $35,000.00 per year. 3. You will be entitled to the normal bonus arrangement available to District Managers. 4. You will be provided with all fringe benefits available to District Managers. 5. You will be subject to annual reviews the same as is provided to all other District Managers. 6. For a period of six (6) months, you will be assigned the following accounts: A. University of Michigan B. Healthco C. Either Patterson or Bignall While the

RICKY ADAM RIDENHOUR, Plaintiff-Appellant v. INTERNATIONAL BUSINESS MACHINES CORPORATION and CHET GURSKI, Defendants-Appellees No. COA98-361 (Filed 16 March 1999) 1. Fraud— constructive fraud — breach of fiduciary duty— failure to show benefit In plaintiff’s action against his former employer and its plant manager for constructive fraud based on breach of fiduciary duty after defendants failed to keep confidential defendant’s identity as the person who gave the employer information about a supplier’s fraud, benefits plaintiff claims were allegedly received by defendants from the breach of fiduciary duty were insufficient to support a claim of constructive fraud since (1) the employer’s recovery of more than one million dollars from the supplier for fraud as a result of the information supplied by plaintiff did not relate to any breach of fiduciary duty owed to plaintiff; (2) the employer’s continued business relationship with the supplier was not predicated on a breach of fiduciary duty owed to plaintiff; and (3) the employer’s right to terminate plaintiff’s at-will employment without cause was a right the employer already possessed and did not result from a breach of fiduciary duty to plaintiff. 2. Employer and Employee— wrongful discharge — violation of public policy — insufficient evidence Plaintiff former employee failed as a matter of law to establish a claim of wrongful discharge in violation of public policy where plaintiff’s evidence failed to show that defendant employer was engaged in illegal activity or that plaintiff was asked by defendant to violate any state or federal law or to perform any activity injurious to the public, and uncontroverted evidence at trial tended to show that plaintiff was discharged immediately following a lengthy unexcused and unexplained absence from work. Appeal by plaintiff from judgment entered 12 March 1997 by Judge Ronald E. Bogle in Mecklenburg County Superior Court. Heard in the Court of Appeals 18 November 1998. Kennedy, Kennedy, Kennedy and Kennedy, L.L.P., by Harold L. Kennedy, III, Harvey L. Kennedy, and Annie Brown Kennedy, for plaintiff-appellant. Kilpatrick Stockton LLP, by Charles E. Johnson and R. Rand Thicker, for defendants-appellees. HUNTER, Judge. Plaintiff was employed as a machinist with International Business Machines Corporation (IBM) at its facility in Charlotte, North Carolina from December 1989 until December 4, 1991. In March 1990, plaintiff learned that IBM was renegotiating their contract with Atlantic Design Company (ADC), a company where plaintiff had previously worked. Plaintiff informed his manager that he had sensitive information that would be helpful to IBM in their negotiations. He asked for anonymity and was given assurances that his identity would be kept confidential. Plaintiff disclosed that ADC had contracted to manufacture cards for IBM by hand, was actually manufacturing the cards by machine on off shifts, and was billing IBM as if the cards were done by hand. Plaintiff referred to the jobs as “cheat jobs” and stated they involved millions of dollars in fraud. Plaintiff related the same information to numerous IBM officials and requested anonymity from each, explaining that the ADC managers involved in the fraud were unsavory characters and he feared for his safety. At one point during the investigation, plaintiff met with a representative of ADC’s parent company and was introduced to him by name by an IBM manager. Plaintiff claims this was a breach of the manager’s promise to maintain his anonymity and after the introduction plaintiff became fearful for his life, became nervous, could not eat, and developed severe stomach and back pains. As a result of plaintiffs information regarding the fraud of ADC, IBM recovered $1,250,000.00 from ADC. Plaintiff applied for IBM’s national suggestion award and on 15 June 1991, he received the maximum award of $150,000.00. The award was presented in the presence of four IBM managers, an act which plaintiff contends also breached IBM’s commitment to confidentiality. However, defendants claim the application for the award made clear that such an application and award could not be kept confidential. Plaintiff further claims he experienced on-the-job retaliation after he received the suggestion award. Retaliatory acts included being removed from his regular job and used as an extra, being assigned to the worst machines to assure a decrease in production numbers, being given bad appraisals and bypassed for promotion, and ultimately being terminated on 4 December 1991. Defendants claim that IBM terminated plaintiff’s employment after plaintiff left work on 23 November 1991 without permission, had six days of unexcused absences, failed to follow IBM’s call-in procedures, and failed to respond to his supervisor’s requests for an explanation for his absence. On 15 December 1994, plaintiff filed a complaint against IBM and several IBM employees including Chet Gurski, IBM’s plant manager, alleging wrongful discharge in violation of public policy. An amended complaint added the claim of constructive fraud based on breach of fiduciary duty. During discovery, two defendants were voluntarily dismissed without prejudice and one was dismissed pursuant to Rules 12(b)(4), 12(b)(5), and 12(b)(6) of the North Carolina Rules of Civil Procedure. The remaining defendants’ (Gurski and IBM) motion for summary judgment was denied and the case was tried before a jury on 27 January 1997. After the close of plaintiff’s evidence, the trial court granted defendants’ motion for directed verdict as to all claims against Gurski and as to the constructive fraud claim against IBM. A jury rendered a verdict against the plaintiff on his remaining claim of wrongful discharge in violation of public policy against IBM. Plaintiff appeals. Plaintiff first contends the trial court committed reversible error in granting defendants’ motion for a directed verdict on plaintiff’s claim for constructive fraud based on a breach of fiduciary duty. Upon defendants’ motion for a directed verdict, the evidence must be taken as true and considered in the light most favorable to the plaintiff. Farmer v. Chaney, 292 N.C. 451, 452, 233 S.E.2d 582, 584 (1977). However, if plaintiff fails to present evidence of each element of his claim for relief, the claim will not survive a directed verdict motion. Felts v. Liberty Emergency Service, 97 N.C. App. 381, 383, 388 S.E.2d 619, 620 (1990). In order to withstand defendants’ motion for directed verdict, plaintiff had the burden of presenting evidence to support each element of his constructive fraud claim. In stating a cause of action for constructive fraud, plaintiff must allege facts and circumstances which created the relation of trust and confidence and “which led up to and surrounded the consummation of the transaction in which defendant is alleged to have taken advantage of his position of trust to the hurt of plaintiff.” Barger v. McCoy Hillard & Parks, 346 N.C. 650, 666, 488 S.E.2d 215, 224 (1997) (citation omitted). “Implicit in the requirement that a defendant ‘[take] advantage of his position of trust to the hurt of plaintiff is the notion that the defendant must seek his own advantage in the transaction; that is, the defendant must seek to benefit himself.” Id. “The requirement of a benefit to defendant follows logically from the requirement that a defendant harm a plaintiff by taking advantage of their relationship of trust and confidence . . . [and is] implicit throughout the cases allowing constructive fraud claims.” Id. at 667, 488 S.E.2d at 224. See, e.g., Terry v. Terry, 302 N.C. 77, 84, 273 S.E.2d 674, 678-79 (1981) (defendant used position of trust and confidence to take advantage of his ill brother and purchase his business at a price below market value); Link v. Link, 278 N.C. 181, 193, 179 S.E.2d 697, 704 (1971) (defendant husband took advantage of relationship with wife to obtain shares of stock as part of a separation agreement); Vail v. Vail, 233 N.C. 109, 115, 63 S.E.2d 202, 207 (1951) (defendant son took advantage of relationship of trust to obtain deed to property from his mother). The parties dispute whether plaintiffs forecast of evidence tends to show there was a relationship of trust and confidence between defendants and plaintiff sufficient to support a claim for constructive fraud. We need not decide this issue, however, because we find that although plaintiff claims IBM benefitted from a breach of its fiduciary duty, the benefits plaintiff claims were received are insufficient to support a claim of constructive fraud. Plaintiff first claims that IBM received the monetary benefit of $1,250,000.00 recouped from ADC. However, this money was recovered because of the fraud by ADC and there is no evidence the recovery of the funds relates to any breach of a fiduciary duty owed to plaintiff by IBM. Plaintiff also claims that IBM benefitted by having a continued business relationship with ADC. Again, we fail to see how this continued relationship was predicated on a breach of fiduciary duty owed to plaintiff. In addition, our Supreme Court has stated that the benefit of a continued relationship “is insufficient to establish the benefit required for a claim of constructive fraud.” Barger, 346 N.C. at 667, 488 S.E.2d at 224. The final benefit plaintiff claims IBM received is the retaliatory firing of plaintiff. It has been held that “[e]ither party to an employment-at-will contract can terminate the contract at will for no reason at all, or for an arbitrary or irrational reason.” Tompkins v. Allen, 107 N.C. App. 620, 622, 421 S.E.2d 176, 178 (1992), disc. review denied, 333 N.C. 348, 426 S.E.2d 713 (1993) (citation omitted). “However, this doctrine is not without limits and a valid claim for relief exists for wrongful discharge of an employee at will if the contract is terminated for an unlawful reason or a purpose that contravenes public policy.” Id. (citations omitted). The jury either found that plaintiff’s conduct of reporting the fraud by ADC was not protected by law or that plaintiffs conduct was not a substantial factor in IBM’s decision to terminate plaintiff. The benefit of the right to terminate plaintiff without cause was a right IBM already possessed, and therefore IBM could not have received that benefit from breaching a fiduciary duty. We find the trial court properly granted defendants’ motion for directed verdict on plaintiff’s claim for constructive fraud based on breach of fiduciary duty. Plaintiff next contends the trial court committed reversible error in its instructions to the jury on plaintiff’s claim of wrongful discharge in violation of public policy and in failing to give plaintiff’s proposed special jury instructions regarding that claim. Plaintiff requested the trial court to instruct the jury, in part, that no employee may be terminated from his employment in violation of public policy. The court denied plaintiff’s request and, instead, instructed the jury from the North Carolina Pattern Jury Instructions — Civil 640.20 (1991). “It is well settled [that] the trial court must give the instructions requested, at least in substance, if they are proper and supported by evidence. However, the trial court may exercise discretion to refuse instructions based on erroneous statements of the law.” Roberts v. Young, 120 N.C. App. 720, 726, 464 S.E.2d 78, 83 (1995) (citation omitted). Here, the trial court determined, in its discretion, that the evidence did not support plaintiff’s allegation that he was discharged for a purpose contravening public policy and instructed the jury to determine whether the plaintiff was wrongfully discharged for “his participation in conduct protected by law.” The jury rejected this remaining contention. As previously stated, North Carolina is an employment-at-will state. Our Supreme Court “has repeatedly held that in the absence of a contractual agreement between an employer and an employee establishing a definite term of employment, the relationship is presumed to be terminable at the will of either party without regard to the quality of performance of either party.” Kurtzman v. Applied Analytical Industries, Inc., 347 N.C. 329, 331, 493 S.E.2d 420, 422 (1997), reh’g denied, 347 N.C. 586, 502 S.E.2d 594 (1998). Limited exceptions have been adopted to this bright-line rule. First, as stated above, parties can remove the at-will presumption by specifying a definite period of employment contractually. Second, federal and state statutes have created exceptions prohibiting employers from discharging employees based on impermissible considerations such as the employee’s age, race, sex, religion, national origin, or disability, or in retaliation for filing certain claims against the employer. See, e.g., 29 U.S.C. § 623(a) (1988) (Age Discrimination Act); 42 U.S.C. § 2000e-2a (1988) (Equal Employment Opportunities Act); 42 U.S.C. § 12112(a) (Supp. 1988) (Americans with Disabilities Act); N.C.G.S. § 95-241 (1993) (prohibiting discharge in retaliation for filing workers’ compensation, OSHA, and similar claims). Finally, this Court has recognized a public-policy exception to the employment-at-will rule. See . . . Coman v. Thomas Mfg. Co., 325 N.C. 172, 381 S.E.2d 445 (1989) (discharging an employee for refusing to falsify driver records to show compliance with federal transportation regulations offends public policy). Id. at 331-32, 493 S.E.2d at 422. Public policy is defined as “the principle of law that holds no citizen can lawfully do that which has a tendency to be injurious to the public or against the public good.” Johnson v. Mayo Yarns, Inc., 126 N.C. App. 292, 296, 484 S.E.2d 840, 842-43, disc. review denied, 346 N.C. 547, 488 S.E.2d 802 (1997). There is no specific list of what actions constitute a violation of public policy. Garner v. Rentenbach Constructors Inc., 129 N.C. App. 624, 628, 501 S.E.2d 83, 86 (1998). However, wrongful discharge claims have been recognized in North Carolina where the employee was discharged (1) for refusing to violate the law at the employers request, see Sides v. Duke University, 74 N.C. App. 331, 328 S.E.2d 818, disc. review denied, 314 N.C. 331, 333 S.E.2d 490 (1985), (2) for engaging in a legally protected activity, or (3) based on some activity by the employer contrary to law or public policy, see Garner, supra. Viewing the evidence in a light most favorable to plaintiff, it appears, as a matter of law, that plaintiff has failed to establish a claim of wrongful discharge under any of these recognized public policy exceptions. First, plaintiffs employer was not engaged in unlawful activity and plaintiffs evidence shows no indication he was asked by his employer to violate any federal or state law or to perform any activity “injurious to the public or against the public good.” Rather, defendant, IBM, was actually the victim of unlawful activity. Plaintiff, of his own accord, reported the fraudulent activity to IBM and saved his employer well over $1 million dollars for which he was awarded $150,000.00. Second, uncontraverted evidence introduced at trial tended to show that plaintiff was discharged immediately following a lengthy unexcused and unexplained absence from work. Based on the above, we find no violation of public policy. The trial court was justified in refusing to instruct the jury on the public policy exception to North Carolina’s employment-at-will doctrine. As a result of our holdings above, we find it unnecessary to address plaintiffs remaining assignment of error. Affirmed. Judges MARTIN and SMITH concur.

Rehearing Denied March 5, 1999: Morris v Clawson Tank Company, No. 108659. Reported ante, 256. Weaver, C.J. I would grant rehearing. Young, J. I would grant rehearing. I believe that the Court’s opinion is inconsistent with the settled mitigation law of Michigan and the federal courts. While this Court accurately noted that the duty of mitigation obligates a claimant to avoid unemployment or underemployment, 459 Mich 256, 264 (1998), it nonetheless held that such a claimant had no duty to seek employment of a “like nature” in order to satisfy the duty of mitigation. This Court’s opinion conflates the principle that a claimant need not take an “unacceptable job” with the core mitigation duty to “use such means as are reasonable under the circumstances to avoid or minimize the damages.” Shiffer v Gibraltar School Dist Bd of Ed, 393 Mich 190, 197 (1974). There is no inconsistency between requiring a claimant reasonably to seek employment to minimize avoidable damages and requiring a claimant to seek employment “like” that which was discriminatorily refused. To the extent that the measure of damages remains the job from which a claimant was discriminatorily excluded, removing the obligation to seek like employment introduces an inappropriate asymmetry in the basic mitigation doctrine. Such a duty to seek like employment clearly serves the fundamental mitigation obligation reasonably to reduce avoidable damages. The duty to seek like employment does not as this Court’s opinion suggests place an undue burden on a claimant who has been discriminatorily denied employment in the first instance. It is the reasonableness of that effort that is at issue if the defendant chooses to contest mitigation, and the defendant bears the burden of demonstrating a failure of mitigation. Riethmiller v Blue Cross & Blue Shield of Michigan, 151 Mich App 188, 191 (1986). Here, plaintiff obtained only seasonal employment and stipulated on the record that he did not actively seek full time employment thereafter. Thus, the issue was whether plaintiff had fulfilled his duty of mitigation by merely seeking and obtaining seasonal employment and abandoning efforts to obtain year-round employment similar to that from which he was wrongfully discharged by his employer. In contrast with this Court’s opinion, I find nothing in the earlier reported employment discrimination cases of this state or the federal courts suggesting that a claimant may remain wilfully underemployed and satisfy the obligation to mitigate. Thus, this Court’s holding that plaintiff was not obligated to seek “like employment” is not only logically inconsistent with the general mitigation principle, but it actively subverts the primary mitigation duty reasonably to avoid damages. Moreover, as stated, I believe the Court’s holding is at variance with the established case law of Michigan and the federal courts. See Brewster v Martin Marietta Aluminum Sales, Inc, 145 Mich App 641, 663 (1985); Riethmiller v Blue Cross & Blue Shield of Michigan, supra at 191. See also Ford Motor Co v EEOC, 458 US 219, 231-232 (1982).

BARNEY HUANG, Plaintiff v. THOMAS J. ZIKO, BECKY R. FRENCH, BRUCE R. POULTON, THE BOARD OF GOVERNORS OF THE UNIVERSITY OF NORTH CAROLINA AND CONSTITUENT INSTITUTION, NORTH CAROLINA STATE UNIVERSITY, Defendants No. COA98-352 (Filed 16 February 1999) Statute of Limitations— tolling — federal action The trial court did not err by allowing defendant’s motion for summary judgment on the basis of the statute of limitations where plaintiff pursued through the state and federal courts claims arising from his dismissal as a university professor following charges of attempted second-degree rape and assault on a female; assuming that plaintiffs claims accrued when defendant Board affirmed his dismissal on 9 February 1990, plaintiff ordinarily would have had until 9 February 1993 to file his complaint in state court; plaintiff did not file his claim in state court until 22 May 1996 and his claims were time barred unless the statute of limitations was tolled; no statute or rule provides for the exclusion of the time during which the federal action was pending from the limitations period; and, because North Carolina has no applicable “grace period” longer than the thirty-day period set out in 28 U.S.C.A. § 1367, the statute of limitations was tolled while the federal action was pending and for thirty days thereafter. Plaintiff could have filed his complaint in state court at any time during the pendency of the federal action and up to thirty days after the United States Court of Appeals reached its decision on 7 December 1995. Appeal by plaintiff from judgment entered 16 February 1998 by Judge Stafford G. Bullock in Wake County Superior Court. Heard in the Court of Appeals 25 January 1999. Kenneth N. Barnes for plaintiff-appellant. Attorney General Michael F. Easley, by Special Deputy Attorney General David Roy Blackwell, for defendants-appellees. TIMMONS-GOODSON, Judge. Prior to his dismissal, plaintiff was a tenured professor in the Department of Biological and Agricultural Engineering at North Carolina State University (hereinafter “defendant University”). In June 1988, plaintiff was charged with attempted second-degree rape and assault on a female. On 14 July 1988, defendant Bruce R. Poulton, then chancellor of defendant University, issued a notice of intent to discharge letter to plaintiff suspending him from his duties and terminating his salary as of 1 January 1989. Plaintiff requested a hearing on his dismissal pursuant to the Code of the Board of Governors of the University of North Carolina (hereinafter “defendant Board”). Following a hearing and recommendation by a Faculty Hearing Committee that plaintiff be removed from the faculty, defendant Poulton dismissed plaintiff effective 7 February 1989. Plaintiff appealed to defendant University’s Board of Trustees and, then, to defendant Board. Defendant Board ultimately affirmed the Board of Trustees’ decision on 9 February 1990. Plaintiff appealed to the superior court, which reversed his dismissal. This Court affirmed the superior court’s reversal of plaintiff’s dismissal, but the Supreme Court reversed this Court’s decision and upheld plaintiff’s dismissal. In re Dismissal of Huang, 336 N.C. 67, 441 S.E.2d 696 (1994). Prior to exhausting his administrative remedies, plaintiff filed a complaint in superior court against defendant University and defendant Poulton for breach of contract and intentional infliction of emotional distress. The trial court granted summary judgment for defendants on the emotional distress claim and for plaintiff on the contract claim. Defendants appealed to this Court, which reversed the trial court’s summary judgment for plaintiff on the ground that he had an adequate remedy for breach of contract in the administrative appeal of his discharge. Huang v. N.C. State University, 107 N.C. App. 710, 421 S.E.2d 812 (1992). On 21 June 1991, plaintiff filed a complaint in the United States District Court for the Eastern District of North Carolina against defendants Thomas J. Ziko, Becky R. French, Poulton, Board, and University. In the complaint, he alleged federal claims of civil rights violations, Title VII violations, free speech violations, and age discrimination. He alleged state claims of due process and equal protection. Defendants filed a motion for summary judgment. On 11 January 1993, the United States District Court granted defendants’ motion for summary judgment with respect to all federal claims. As to plaintiff’s state claims, the court ruled as follows: Because all the federal claims have been dismissed against defendants in this action, the court dismisses without prejudice the remaining pendent state claims plaintiff has asserted under the North Carolina Constitution. In view of this, the court is divested of jurisdiction to entertain these claims, and plaintiff is left to pursue these matters in state court. Plaintiff appealed to the United States Court of Appeals for the Fourth Circuit. On 7 December 1995, the Court of Appeals affirmed the lower court’s decision in an unpublished per curiam opinion. Huang v. French, 73 F.3d 357 (4th Cir. 1995). On 22 April 1996, the United States Supreme Court denied plaintiffs petition for a writ of certiorari. Huang v. French, 517 U.S. 1157, 134 L. Ed. 2d 649 (1996). On 22 May 1996, plaintiff filed a complaint in the superior court seeking compensatory and punitive damages from defendants for breach of contract, due process violations, malicious prosecution, intentional infliction of emotional distress, civil conspiracy, and constructive fraud. Defendants subsequently filed an answer that included a motion to dismiss and alternative motion for summary judgment. Defendants asserted as an affirmative defense that each of plaintiffs claims was barred by a three-year statute of limitations. On 16 February 1998, the trial court granted defendants’ motion for summary judgment. The trial court ruled that “[t]he statute of limitations bars each and every one of the Plaintiff’s claims.” Plaintiff appeals. Plaintiff argues that the trial court erred by granting defendants’ motion for summary judgment. He contends that the statute of limitations had not run at the time he filed his complaint. We disagree. The parties agree that each of plaintiff’s claims was subject to a three-year statute of limitations. Assuming arguendo that plaintiff’s claims accrued when defendant Board affirmed his dismissal on 9 February 1990, plaintiff ordinarily would have had until 9 February 1993 to file his complaint in state court. Because plaintiff did not file his complaint in state court until 22 May 1996, his claims were time-barred, unless the statute of limitations was tolled. As the parties recognize, “filing an action in federal court which is based on state substantive law . . . toll[s] the statute of limitations while that action is pending.” Clark v. Velsicol Chemical Corp., 110 N.C. App. 803, 808, 431 S.E.2d 227, 229 (1993), aff’d per curiam, 336 N.C. 599, 444 S.E.2d 223 (1994). The parties agree that plaintiff’s federal action was no longer pending for the purpose of tolling the statute of limitations when the United States Court of Appeals reached its decision on 7 December 1995. See Clark, 110 N.C. App. 803, 431 S.E.2d 227 (holding that because a petition for writ of cer-tiorari to the United States Supreme Court is not an appeal of right, the federal action is not alive for the purpose of tolling the statute of limitations while a decision to allow or deny such a petition is pending). However, the parties disagree as to whether plaintiff had additional time to file his complaint in state court after the United States Court of Appeals reached its decision. Plaintiff contends that once the federal action was no longer pending, the time for filing his complaint in state court should have been extended for the portion of the three-year limitations period that had not been used when he filed the federal action. Since less than a year and a half had passed when plaintiff filed his federal action, he would have had more than a year and a half after 7 December 1995 to file his complaint in state court. Plaintiff’s contention is untenable. The rule which plaintiff would have this Court adopt is contrary to the policy in favor of prompt prosecution of legal claims. Furthermore, such a rule is contrary to the general rule that “[i]n the absence of statute, a party cannot deduct from the period of the statute of limitations applicable to his case the time consumed by the pendency of an action in which he sought to have the matter adjudicated, but which was dismissed without prejudice as to him[.]” 51 Am. Jur. 2d Limitation of Actions § 311 (1970). In this case, no statute or rule provides for the exclusion of the time during which the federal action was pending from the limitations period. We likewise find unpersuasive defendants’ contention that the statute of limitations was tolled only until the United States Court of Appeals reached its decision and that plaintiff had no additional time to file his complaint in state court. We believe the question presented by this appeal is controlled by 28 U.S.C.A. § 1367 (1993). See Kolani v. Gluska, 75 Cal. Rptr. 2d 257 (1998); Roden v. Wright, 611 So. 2d 333 (Ala. 1992). That federal statute provides that when a federal district court has original jurisdiction over a civil action it may also exercise “pendent” or “supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy[.]” 28 U.S.C.A. § 1367(a). A federal district court may decline to exercise supplemental jurisdiction over a claim if it “has dismissed all claims over which it has original jurisdiction].]” 28 U.S.C.A. § 1367(c)(3). The statute further provides that the period of limitations for any supplemental claim “shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.” 28 U.S.C.A. § 1367(d). Since the claims now asserted by plaintiff were supplemental claims dismissed by the United States District Court, he was entitled to thirty additional days to file his complaint in state court after the United States Court of Appeals reached its decision, unless some state statute provided for a longer period of time. Rule 41(b) of the North Carolina Rules of Civil Procedure provides a savings provision for claims that have been involuntarily dismissed: If the court specifies that the dismissal of an action commenced within the time prescribed therefor, or any claim therein, is without prejudice, it may also specify in its order that a new action based on the same claim may be commenced within one year or less after such dismissal. N.C. Gen. Stat. § 1A-1, Rule 41(b) (1990). Assuming arguendo that Rule 41(b) could apply in this case, the United States District Court did not specify in its order that a new action based on the same claims could be commenced within one year after the dismissal. See Bockweg v. Anderson, 328 N.C. 436, 402 S.E.2d 627 (1991). Therefore, the time for plaintiff to file his complaint in state court was not extended for an additional year. Because North Carolina has no applicable “grace period” longer than the thirty-day period set out in 28 U.S.C.A. § 1367, the statute of limitations was tolled while the federal action was pending and for thirty days thereafter. Plaintiff could have filed his complaint in state court at any time during the pendency of the federal action and up to thirty days after the United States Court of Appeals reached its decision on 7 December 1995. Plaintiffs complaint, filed on 22 May 1996, was not timely filed, and the trial court did not err by allowing defendants’ motion for summary judgment. The summary judgment entered by the trial court is affirmed. Affirmed. Judges GREENE and HUNTER concur.

LAMORIA v HEALTH CARE & RETIREMENT CORPORATION Docket No. 199795. Submitted October 15, 1998, at Lansing. Decided January 29, 1999, at 9:10 A.M. Barbara A. Lamoria brought an action in the Saginaw Circuit Court against Health Care & Retirement Corporation and others, seeking damages for her alleged wrongful discharge from her employment as a registered nurse at a retirement home owned by the corporate defendant. Among the theories of recovery pleaded by the plaintiff were violation of the state Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., violation of the state Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq., and retaliation for the plaintiffs seeking worker’s compensation benefits. The plaintiff had injured her knee in the course of her employment and was discharged from her employment eleven months after her injury while she was still on an extended medical leave related to the knee injury, allegedly on the basis of an employment policy providing that medical leaves of absence were not to exceed six months. The plaintiff alleged that the defendant’s’ failure to extend her medical leave violated the provisions of the hcra because by such failure the defendant failed to malee reasonable accommodation for the handicap that she suffered as a result of her injured knee. The court, Leopold P. Borrello, J., granted summary disposition for the defendants with respect to all of the plaintiff’s claims, finding that the plaintiff did not have a valid claim under the hcra because the alleged handicap was related to the plaintiff’s ability to do her job and that the defendants were not required to give the plaintiff more time to heal. The plaintiff appealed. The Court of Appeals, O’Connell and Whitbeck, JJ. (Fttzserald, P.J., concurring), in an opinion released July 10, 1998, reversed the trial court’s grant of summary disposition with respect to the claims alleging violation of the Civil Rights Act and retaliation for filing a worker’s compensation claim on the basis that there were contested issues of material fact and reversed with respect to the hcra claim on the basis that it was required by MCR 7.215(H) to follow the holding in Rymar v Michigan Bell Telephone Co, 190 Mich App 504 (1991), although the majority opinion expressed disagreement with the holding in Rymar. 230 Mich App 801, 812-817 (1998). By its order of July 24, 1998, the Court of Appeals vacated the July 10 opinion and convened a special panel pursuant to MCR 7.215(H) to resolve the conflict between the position taken by the panel in the Lamoria opinion and the position taken by the panel in the Rymar opinion. 230 Mich App 801 (1998). After consideration by the conflict resolution panel, the Court of Appeals held: The majority opinion in Lamoria properly concluded that the hcra does not require that an employer allow a disabled employee a reasonable time to heal before applying the provision in the hcra that limits its application to handicaps that are unrelated to an employee’s ability to perform the duties of a particular job or position. Accordingly, the trial court’s grant of summary disposition for the defendants with respect to the plaintiffs hcra claim must be affirmed. In all other respects, the opinion of the prior Lamoria panel is adopted. Affirmed in part and reversed in part. Cavanagh, J., concurring, stated that the “reasonable time to heal” doctrine is too vague to give either employers or employees any meaningful guidance. Civil Rights — Handicappers’ Civil Rights Act — Temporary Disabilities — Employment Discrmnation. A person who is unable to perform the duties of a particular position because of a temporary disability, even if that disability could be remedied within a reasonable period so that the person would be able to perform those duties, does not have a handicap for which that person may seek the protections against employment discrimination provided by the Handicappers’ Civil Rights Act (MCL 37.1101 et seq.; MSA 3.550[101] et seq.). Howard & Howard Attorneys, P.C. (by Michael J. Brown), for the plaintiff. Kienbaum Opperwall Hardy & Pelton, P.L.C. (by Eric J. Pelton and Noel D. Massie), for the defendants. Amicus Curiae: Clark Hill P.L.C. (by Duane L. Tamacki and J. Walker Henry), for Michigan Manufacturers Association. Before: Corrigan, C.J., and Kelly, Gribbs, McDonald, Doctoroff, Cavanagh, and Markey, JJ. Per Curiam. This Court convened this special panel under MCR 7.215(H)(3) to resolve the conflict between the prior vacated opinion in this case, Lamoria v Health Care & Retirement Corp, 230 Mich App 801; 584 NW2d 589 (1998), and Rymar v Michigan Bell Telephone Co, 190 Mich App 504; 476 NW2d 451 (1991), regarding the “reasonable time to heal” doctrine under the Handicappers’ Civil Rights Act (HCRA), MCL 37.1101 et seq.; MSA 3.550(101) et seq. The original Lamoria panel, in compliance with MCR 7.215(H)(1), followed this Court’s holding in Rymar that an employee who on the date of his discharge is unable to perform the requirements of his job because of a disability may still have a claim under the hcra if he would have regained the capacity to do the work within a reasonable time. If not for the precedential effect of Rymar, the Lamoria majority would have affirmed the trial court’s grant of summary disposition for defendants regarding plaintiff’s HCRA claim. We agree with the Lamoria majority and hold for the reasons it expressed that the hcra does not require that an employer allow a disabled employee a reasonable time to heal. We therefore affirm the trial court’s grant of summary disposition regarding plaintiff’s HCRA claim. In all other respects, we adopt the opinion of the prior Lamoria panel as our own. Affirmed in part and reversed in part. Plaintiff, as the prevailing party, may tax costs under MCR 7.219. Judge Fitzgerald concurred, but wrote separately to express his belief that Rymar was correctly decided. Cavanagh, J. (concurring). I concur in the result reached by the majority. Even assuming that a temporary disability constitutes a handicap within the meaning of the Handicappers’ Civil Rights Act, MCL 37.1101 et seq.] MSA 3.550(101) et seq., I believe that the “reasonable time to heal” doctrine is too vague to give either employers or employees any meaningful guidance in making decisions in situations such as that presented in the instant case.

GLORIA ANN EVANS, Plaintiff v. JUDITH R. COWAN, Individually and in her official capacity as Director of Student Health Services, UNC-CH; BRUCE VUKOSON, Individually and in his official capacity as Director of the AfterHours Program at Student Health Services, UNC-CH; and JANE M. HOGAN, Individually and in her official capacity as Associate Director of Student Health Services, UNC-CH; Defendants No. COA97-781 (Filed 5 January 1999) 1. Constitutional Law— State — Law of the Land Clause— employment interest — employment at will The trial court properly granted summary judgment for defendant on a claim under Art. I, § 19 of the North Carolina Constitution (the Law of the Land Clause) arising from the termination of plaintiff’s employment. Plaintiff must possess a property interest in the employment before the Law of the Land analysis may be undertaken and plaintiffs assertions that she fell outside the category of an at-will employee are unfounded. 2. Constitutional Law— State — freedom of speech — public concern — reason for discharge The trial court did not err by granting summary judgment for defendant on plaintiffs free speech claim under the North Carolina Constitution arising from the termination of her employment where, assuming that the Whistleblower Act did not afford an adequate state remedy, plaintiffs statements related to internal policies and office administration and there was no forecast of evidence showing that her statements were either the motivating or a substantial factor underlying her dismissal. Appeal by plaintiff from order filed 16 April 1997 by Judge Robert H. Hobgood in Orange County Superior Court. Heard in the Court of Appeals 18 February 1998. McSurely Dorosin & Osment, by Alan McSurely, Mark Dorosin and Ashley Osment, for plaintiff-appellant. Attorney General Michael F. Easley, by Thomas J. Ziko and Celia Grasty Jones, for defendants-appellees. JOHN, Judge. Plaintiff appeals the trial court’s grant of summary judgment in favor of defendants. We affirm the trial court. Pertinent factual and procedural information includes the following: Defendant Jane Hogan (Dr. Hogan) was awarded a Ph.D. degree in health care administration in 1991 by the University of Pennsylvania. In 1990, she served as a volunteer consultant at the University of North Carolina at Chapel Hill (UNC-CH) Student Health Services (SHS). In that capacity, Dr. Hogan contacted plaintiff and suggested employment at SHS to plaintiff. The latter had under consideration a tenure track faculty position at the University of South Carolina School of Nursing, but instead agreed 9 April 1990 to become Associate Director of the AfterHours Program (AfterHours) at SHS. AfterHours provided health services to UNC-CH students during evenings, weekends and holidays. Plaintiff joined a task force comprised of defendant Dr. Bruce Vokoson (Dr. Vokoson), Director of AfterHours; Dr. Hogan; defendant Dr. Judith Cowan (Dr. Cowan), Director of SHS; and Jaclyn Jones (Jones), Acting Director of Nursing. The task force was seeking methods of improving the efficiency of SHS. In addition, plaintiffs duties included clinical responsibilities and the task of recruiting and supervising physician extenders, i.e., physician assistants attached to a physician’s medical license, employed in AfterHours. The AfterHours task force met regularly for several months. In December 1990, plaintiff suggested that SHS change its practice of paying “moonlighting” physicians to provide AfterHours medical care. In plaintiff’s opinion, that service could be more efficiently and economically furnished by full-time nurse practitioners. According to plaintiff, this suggestion made Dr. Vukoson “visibly angry.” In task force meetings, plaintiff also sought implementation of a comprehensive alcohol policy for SHS, noting “most of our patients’ problems [are] alcohol-related.” At one meeting, plaintiff also expressed concern that Dr. Hogan had acted as the second R.N. covering a SHS night shift. Plaintiff noted Dr. Hogan was a non-employee acting in a medical capacity at a state institution. In April 1991, Dr. Cowan informed plaintiff that her job responsibilities would be strictly clinical as of 1 July 1991. Shortly thereafter, plaintiff developed pleural pericarditis, an inflammation of the lung tissue and heart covering. Plaintiff informed Jones, her supervisor, that she expected to return to work the week of 5 May 1991. However, because her sick leave was exhausted, plaintiff actually resumed her duties 29 April 1991. On 30 April 1991, Dr. Vukoson telephoned plaintiff’s cardiologist to ascertain if plaintiff was working contrary to her physician’s instructions. Plaintiff subsequently received a letter dated 6 May 1991, signed by Jones and Drs. Vukoson and Cowan, described therein as a “Final Written Warning for personal conduct.” Noting plaintiff’s earlier than anticipated return to work, the correspondence asserted plaintiff’s “inconsistent communications” had resulted in 1) the waste of administrative time expended in procuring coverage for her shifts, 2) inconvenience to staff who had agreed to provide coverage, and 3) dimin-ishment in supervisory and employee relations as a result of the confusion. In addition, plaintiff was relieved of responsibility for the AfterHours schedule. According to plaintiff, the warning communicated by the letter was rescinded 30 August 1991. In May 1991, plaintiff learned at a nursing staff meeting that SHS planned to use “Fellows,” physicians who were current recipients of a fellowship in a graduate medical education program, as back-up supervision for nurse practitioners in AfterHours. To be approved to practice in North Carolina, nurse practitioners must work continuously under the supervision of a primary supervising physician (PSP). Believing this new policy would directly conflict with 21 N.C.A.C. 32M.0009(5)(a), plaintiff approached Jones and Dr. Cowan with her concerns. Dr. Cowan contacted the Board of Medical Examiners (the Board) to request clarification of the regulation and obtain advice regarding the proposed practice. Dr. Cowan was informed the physicians in question could properly serve as back-up supervisors. This response was consistent with information Dr. Hogan had sought and received from the Board. Plaintiff’s re-certification with the Board as a nurse practitioner came due in June 1991. Dr. Vukoson, as plaintiffs PSP, was required to sign her application for reapproval to practice, and despite some reluctance, he did so. However, by copy of a letter to the Board dated 18 October 1991, Dr. Vukoson advised plaintiff he intended to withdraw as her PSP effective 1 January 1992. Dr. Vukoson indicated this decision was based on his increasing lack of trust in plaintiff and what he perceived as her lack of respect for his medical license. In her deposition, Dr. Cowan related that Dr. Vukoson had communicated to her two instances of plaintiffs failure to follow established protocol in treating students. The first concerned a student with a history of suicide, and the second involved a prescription to a student of a drug not in the treatment protocol and allowing that student to leave SHS while “complaining of what could have been a serious reaction with the [drug].” Dr. Cowan also indicated she was aware of a “profound communication difficulty, such a profound difference in perceptions” between plaintiff and Dr. Vukoson. On 14 November 1991, the UNC-CH Medical Staff (the Staff) passed a resolution (the resolution) under which only physicians serving as full-time employees of the Staff and working in the same section as a physician extender were permitted to serve as the latter’s PSP. This rule in effect prevented any physician other than Dr. Vukoson from acting as plaintiff’s PSP. As a result of the resolution, plaintiff was unable to maintain the necessary medical credentials for her position and was notified she would be discharged as of 6 May 1992. Plaintiff received a pre-termination hearing 24 April 1992 and appealed through the highest available grievance procedure levels. Ultimately, UNC-CH Chancellor Paul Hardin upheld plaintiffs discharge for failure to maintain credentials. On 16 November 1993, plaintiff filed the instant action in Orange County Superior Court, alleging slander, violation of her federal constitutional rights and violation of her rights under Article I, §§ 1, 12, 14 and 19 of the North Carolina Constitution. Following removal of the case , by defendants to the United States District Court for the Middle District of North Carolina, defendants moved for summary judgment. In an order filed 6 January 1995, the federal court granted summary judgment on the federal constitutional and slander claims and remanded the state constitutional claims brought against defendants in their official capacities to Orange County Superior Court. On 14 February 1995, defendants sought summary judgment from the trial court on plaintiffs state constitutional claims, arguing each was barred by res judicata as being “identical in all respects to the federal constitutional claims already adjudicated.” Defendants’ motion was allowed, and plaintiff filed timely notice of appeal. On appeal, this Court reversed the trial court’s grant of summary judgment and remanded. See Evans v. Cowan, 122 N.C. App. 181, 468 S.E.2d 575 (1996) (“an independent determination of plaintiff’s constitutional rights under the state constitution is required”). Upon review by our Supreme Court, the ruling of this Court was affirmed per curiam. Evans v. Cowan, 345 N.C. 177, 477 S.E.2d 926 (1996). Following remand to Orange County Superior Court, defendants again moved for summary judgment. The motion was granted in an order filed 16 April 1997. Plaintiff appeals. Summary judgment is properly entered when the pleadings, depositions, answers to interrogatories, admissions and affidavits show no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. N.C.R. Civ. P. 56; Davis v. Town of Southern Pines, 116 N.C. App. 663, 665, 449 S.E.2d 240, 242 (1994), disc. review denied, 339 N.C. 737, 454 S.E.2d 648 (1995). The burden is on the movant to show: (1) an essential element of plaintiff’s claim is nonexistent; (2)' plaintiff cannot produce evidence to support an essential element of its claim; or (3) plaintiff cannot surmount an affirmative defense raised in bar of its claim. Lyles v. City of Charlotte, 120 N.C. App. 96, 99, 461 S.E.2d 347, 350 (1995), rev'd on other grounds, 344 N.C. 676, 477 S.E.2d 150 (1996). In assessing whether this burden is met, all inferences are to be viewed in the light most favorable to the non-movant. Crow v. Citicorp Acceptance Co., 319 N.C. 274, 281, 354 S.E.2d 459, 464 (1987). Bearing these general principles in mind, we first consider plaintiff’s assertion that her termination violated Article I, § 19 of the North Carolina Constitution (the Law of the Land Clause). The Law of the Land Clause provides that “[n]o person shall be ... in any manner deprived of his life, liberty, or property, but by the law of the land,” N.C. Const. art. I, § 19, and has generally been held to be equivalent to the Due Process Clause of the United States Constitution. Lorbacher v. Housing Authority of the City of Raleigh, 127 N.C. App. 663, 675, 493 S.E.2d 74, 81 (1997). Given the similarities, a decision of the United States Supreme Court interpreting the Due Process Clause is persuasive, though not controlling, authority for interpretation of the Law of the Land Clause. Id. Defendants argue plaintiff was an employee at will with no vested property right in continued employment, and thus failed to show the threshold element of a due process analysis. Plaintiff, apparently recognizing that the weight of authority supports defendants’ position, see, e.g., Lorbacher, 127 N.C. App. at 675, 493 S.E.2d at 81 (“plaintiffs complaint fails to state a valid claim under the Law of the Land Clause . . . [because] [h]e simply lacks the requisite property interest in continued employment to trigger the protections afforded by our State Constitution”); Woods v. City of Wilmington, 125 N.C. App. 226, 234, 480 S.E.2d 429, 434 (1997) (trial court’s grant of summary judgment to defendant on Article I, § 19 claim affirmed where “plaintiff did not possess a cognizable property interest in continued employment protected by the North Carolina Constitution”); and Ware v. Fort, 124 N.C. App. 613, 617, 478 S.E.2d 218, 221 (1996) (plaintiff’s argument failed “because plaintiff simply had no property right in the position of which he could be constitutionally deprived — under either the North Carolina or federal constitutions”), nonetheless urges us to take an independent approach to the unique fact situation here, informed by the particularities of North Carolina constitutional jurisprudence, reflecting the unique language, history and policy of the North Carolina Constitution. However, plaintiff is unable to point us to a case supporting her position, and we agree with defendants that plaintiff must possess a property interest in the employment at issue before the Law of the Land Clause analysis may be undertaken. We consider then whether the requisite property interest is present in the case sub judice. This jurisdiction has long adhered to the employment-at-will doctrine, i.e. “[w]here a contract of employment does not fix a definite term, it is terminable at the will of either party, with or without cause.” Burgess v. Your House of Raleigh, 326 N.C. 205, 209, 388 S.E.2d 134, 137 (1990) (citations omitted). An employee at will has no property interest by virtue of her employment, though an enforceable interest in continued employment may “be created by [statute], or by an implied contract.” Howell v. Town of Carolina Beach, 106 N.C. App. 410, 417, 417 S.E.2d 277, 281 (1992) (citations omitted). Plaintiff, having accumulated but twenty-five months of service, makes no claim of statutory “permanent employee status” under N.C.G.S. § 126-5(c)(l) prior to 1 July 1993. See also N.C.G.S. § 126-15.1 (1995) (“probationary employee” is one exempt from state Personnel Act because not “continuously employed for the period of time required by G.S. 126-5(c)). However, plaintiff asserts an implied employment contract in that [she] was heavily recruited for the position at SHS and lured away from a better paying tenure track position at the University of South Carolina; was promised that she would be able to continue to conduct her research; given a joint appointment for a time certain with the School of Nursing; and assured that while she would be accepting a position as a PE II, her position would be quickly upgraded to a PE III. This Court has previously held that an implied employment contract may arise out of representations and additional consideration proffered at the time of hiring. See Sides v. Duke University, 74 N.C. App. 331, 345, 328 S.E.2d 818, 828, disc. review denied, 314 N.C. 331, 333 S.E.2d 490 (1985) (allegations (1) that plaintiff was assured by employer “she could only be discharged for incompetence, [(2) and that] these assurances induced her to move here from Michigan in order to accept the job offer, and [(3)] were part of her employment contract,” sufficient “to remove plaintiffs employment contract from the terminable-at-will rule” for purposes of surviving motion to dismiss breach of contract claim pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6) (1990) for failure to state a claim). However, our Supreme Court has recently cast doubt upon the Sides holding. See Kurtzman v. Applied Analytical Industries, Inc., 347 N.C. 329, 334, 493 S.E.2d 420, 424 (1997) (change of residence exception to employment-at-will doctrine disapproved, and “employer’s assurances of continued employment [held not to] remove an employment relationship from the at-will presumption”). In addition, Sides is readily distinguishable from the instant case. In Sides, the plaintiff was assured individuals in her position could be discharged only for incompetence. Sides, 74 N.C. App. at 345, 328 S.E.2d at 828. Nothing in the record indicates plaintiff herein received any analogous promise. Moreover, the Sides plaintiff moved from Michigan to North Carolina to accept employment. On the other hand, plaintiff acknowledged “there were some good reasons why it might be convenient” to remain in Chapel Hill as opposed to relocating to South Carolina, because her data set was located in Chapel Hill. We therefore conclude that plaintiff’s assertions she fell outside the category of an at-will employee are unfounded. See Salt v. Applied Analytical, Inc., 104 N.C. App. 652, 659, 412 S.E.2d 97, 101 (1991) (no additional consideration where plaintiff failed to show assurances containing “specific terms or conditions, as in Sides”), cert. denied, 331 N.C. 119, 415 S.E.2d 200 (1992); see also McMurry v. Cochrane Furniture Co., 109 N.C. App. 52, 57-58, 425 S.E.2d 735, 739 (1993) (“[plaintiffs failure to accept a tentative offer of employment elsewhere in return for defendant’s gratuitous offer of continued employment for an indefinite period was ... not sufficient additional consideration” to create implied contract). Accordingly, because plaintiff lacked a property interest in continued employment, the trial court’s grant of defendant’s summary judgment motion on plaintiff’s Law of the Land Clause claim is affirmed. Turning to plaintiff’s freedom of speech claim, we note that the North Carolina Constitution proclaims that “[fjreedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained . . . .” N.C. Const, art. I, § 14. Our Supreme Court has deemed the foregoing section “a direct personal gúarantee of each citizen’s right of freedom of speech.” Corum v. University of North Carolina, 330 N.C. 761, 781, 413 S.E.2d 276, 289, cert. denied, 506 U.S. 985, 121 L. Ed. 2d 431 (1992). Nonetheless, a citizen asserting abridgement of her state constitutional rights may assert a direct claim thereunder only absent an adequate state remedy. Id. at 782, 413 S.E.2d at 289. The judiciary “must bow to established claims and remedies where these provide an alternative to the extraordinary exercise of its inherent constitutional power.” Id. at 784, 413 S.E.2d at 291. Arguing that plaintiff possessed an adequate state remedy precluding her direct constitutional claim, defendants point to what is referred to as our “Whistleblower Act,” N.C.G.S. §§ 126-84 through 126-88 (1995). In her complaint, plaintiff alleged she was discharged in retaliation for her “good faith and truthful communications about important health and administrative issues at the Student Health Services,” speech protected by the North Carolina Constitution. Plaintiff maintains the Whistleblower Act did not afford an adequate state remedy for this claim. Assuming arguendo plaintiff is correct, we nonetheless hold summary judgment was proper on her freedom of speech claim. For such a claim to be properly advanced, the speech at issue first must involve a matter of public concern. Connick v. Myers, 461 U.S. 138, 146, 75 L. Ed. 2d 708, 719 (1983). Second, “such protected speech or activity [must have been] the ‘motivating’ or ‘but for’ cause for [the plaintiff’s] discharge or demotion.” Warren v. New Hanover County Bd. of Education, 104 N.C. App. 522, 525-26, 410 S.E.2d 232, 234 (quoting Jurgensen v. Fairfax County, 745 F.2d 868, 877-78 (4th Cir. 1984)). Resolution of these issues is a matter of law for the court. Id. As to the question of public concern, the court must look to the content, form and context of the speech involved. Connick, 461 U.S. at 147-48, 75 L. Ed. 2d at 720; see also Corum, 330 N.C. at 775, 413 S.E.2d at 285. The test is whether the employee was speaking as a citizen about matters of public concern, or as an employee on matters of personal interest. Connick, 461

SAMMY E. ESTRIDGE, III, Plaintiff-Appellee v. HOUSECALLS HEALTHCARE GROUP, INC.; TERRY JUDSON WARD; CAROL WARD; and CHRISTINE STEWART, Defendants-Appellants No. COA97-1534 (Filed 29 December 1998) 1. Malicious Prosecution— co-employee and owner’s wife not liable Plaintiff former employee’s co-employee could not be held liable to plaintiff for malicious prosecution, although she reported to her employer that she believed that plaintiff was holding the employer’s cellular telephone and pager hostage until he received his final paycheck, where she reported plaintiff’s conduct to the magistrate at the employer’s direction, she had no knowledge that the phone and pager had been returned, and the magistrate issued a warrant charging plaintiff with conversion by a bailee. Nor could the wife of the employer’s owner be liable to plaintiff for malicious prosecution where there was no evidence that she had any part in the initiation of the criminal proceeding against plaintiff. 2. Malicious Prosecution— action against former employer and owner — sufficient evidence Plaintiff’s evidence was sufficient to be submitted to the jury in an action against his former employer and the employer’s owner for malicious prosecution of charges against plaintiff for conversion by a bailee of a cellular phone and a pager. 3. Damages and Remedies— compensatory damages — lump sum — new trial for two defendants A new trial must be awarded as to defendant employer and ' defendant owner on the damages issue in plaintiff former employee’s malicious prosecution action where the jury returned a compensatory damages verdict of $30,000 against all four defendants for malicious prosecution and abuse of process; the evidence was insufficient against all defendants on the abuse of process claim and against the other two defendants on the malicious prosecution claim; and it cannot be determined what portion of the damages was attributable to the malicious prosecution by defendant employer and defendant owner. 4. Abuse of Process— insufficient evidence Plaintiff’s evidence was insufficient to support his claim of abuse of process against his former employer’s owner and the owner’s wife (the Wards) where it tended to show only that, after an assistant district attorney stated that a charge against plaintiff for conversion by a bailee of a cellular telephone and a pager would be dismissed because the property had been returned to the employer, Mrs. Ward stated that “that’s not the point” and both of the Wards sought to have the assistant district attorney proceed with the trial, since there was no evidence of any improper use of the legal process after the issuance of the criminal summons. 5. Evidence— employer’s Medicaid over-billing — irrelevancy to unpaid wages, malicious prosecution, abuse of process Evidence of defendant employer’s alleged over-billing practices with respect to Medicaid and an investigation by the State of those practices was not relevant to plaintiff former employee’s claims for unpaid wages, abuse of process and malicious prosecution of a charge of conversion of a cellular phone and a pager owned by the employer where plaintiff offered no evidence to connect his information about the over-billing practices with the actions of defendants in causing a warrant to be issued against him for conversion of the employer’s property. Furthermore, the prejudicial effect of this evidence on the jury far outweighed its slight probative value. N.C.G.S. § 8C-1, Rule 403. 6. Evidence— corroboration — testimony beyond that corroborated — inadmissibility An expert’s testimony was inadmissible to corroborate plaintiff’s testimony concerning defendant employer’s alleged over-billing practices for Medicaid because his testimony about over-billing by submitting multiple bills for the same services and doubling up in subsequent billings and the total amount of the alleged over-billing went far beyond plaintiff’s testimony that defendant submitted multiple bills for the same services. Chief Judge Eagles dissenting. Appeal by defendants from judgment entered by Judge Peter M. McHugh on 23 May 1997 in Guilford County Superior Court. Heard in the Court of Appeals 24 August 1998. Tuggle Duggins & Meschan, P.A., by J. Reed Johnston, Jr., and Robert C. Cone for plaintiff appellee. Smith Helms Mulliss & Moore, L.L.P., by J. Donald Cowan, Jr., James G. Exum, Jr., and Paul K. Sun, Jr., for defendant appellants. HORTON, Judge. Sammy E. Estridge, III (plaintiff), is a Certified Public Accountant and a Certified Internal Auditor. Plaintiff instituted this action on 27 October 1995 against Housecalls Healthcare Group, Inc. (Housecalls), Terry Ward (Mr. Ward), Carol Ward (Mrs. Ward), and Christine Stewart (Ms.' Stewart) (collectively defendants), seeking damages for unpaid wages, malicious prosecution, and abuse of process. The facts in this case are as follows: Plaintiff was employed by Housecalls Home Health Care, a wholly owned subsidiary of Housecalls, in March 1995 as Assistant Controller. Several months later, he was promoted to Controller. Housecalls is a statewide provider of in-home health care services and primarily provides services for Medicaid-eligible patients utilizing part-time nurses. Housecalls pays the nurses and then bills Medicaid for reimbursement. At trial, plaintiff testified that Housecalls did not have an adequate accounting system so there was no assurance that receipts would be correctly recorded nor a system to prevent the possibility of double billing. Plaintiff made suggestions for improving the system but contends his suggestions were largely ignored. Mr. Ward, on the other hand, stated that many of the recommendations were implemented. On Saturday, 2 September 1995, Mr. Ward, the owner of Housecalls, required plaintiff to attend a meeting at the office and then remain at the office to complete a project. Later that afternoon, plaintiff and his wife discussed his employment with Housecalls, and plaintiff decided to resign. Plaintiff prepared a letter of resignation citing problems with the accounting system which caused him “multiple ethical dilemmas” and posted several copies of the letter in the office building. Plaintiff stated his resignation was effective immediately but offered to act as an independent consultant for an additional ten business days. According to plaintiff, Mr. Ward paged plaintiff the following morning and left a message on his voice mail directing plaintiff to return the company keys. Mr. Ward testified, however, that he also directed plaintiff to return any other property of Housecalls at once. Plaintiff testified that he returned Mr. Ward’s call and stated that he would bring the keys to Housecalls on Tuesday morning while Mr. Ward testified that plaintiff did not say anything about returning the company property. According to plaintiff, on the following Tuesday morning, he turned his keys over to Ms. Stewart. Plaintiff testified that he told Ms. Stewart that he would bring the pager and cell phone back on Friday when he received his paycheck, or earlier if they were needed. Plaintiff left a note with the keys requesting that he be informed whether he would be needed during the ensuing ten-day period and when he was to bring the equipment back. Ms. Stewart testified that plaintiff told her that he would not return the cell phone and pager until he received his final paycheck, and she believed that he was therefore holding the property hostage. ' Mr. Ward then instructed Ms. Stewart to go to a magistrate on that same Tuesday morning, 5 September 1995, and explain the situation. The magistrate issued a warrant charging conversion by a bailee of the pager and cell phone in violation of N.C. Gen. Stat. § 14-168.1 (1993). On Tuesday evening, plaintiff went to the Housecalls office and turned in all the equipment to Lisa Saunders and obtained a receipt from her. He was not aware of the warrant which had been issued at that time and did not learn about the warrant until 16 September 1995. When the criminal case came on for trial, Mr. Ward’s wife was present and discussed the case with the prosecutor. The Assistant District Attorney Mary Hedrick (Ms. Hedrick) dismissed the case because the property had been returned. Mrs. Ward testified that she did not want the case dismissed and informed Ms. Hedrick of this wish and asked if Mr. Ward could be contacted. Mr. Ward also informed Ms. Hedrick that he' wanted the case to be prosecuted, but understood that the decision was Ms. Hedrick’s to make. Plaintiff filed this civil action approximately two weeks after the criminal case was dismissed. The jury entered verdicts against defendants for $1,295.93 in unpaid wages and $30,000.00 for compensatory damages for the criminal prosecution. The jury awarded punitive damages against defendants as follows: Housecalls, $1.5 million; Mr. Ward,-$1.5 million; Mrs. Ward, $1.0 million; and Ms. Stewart, $1. The trial court denied defendants’ motions for judgment notwithstanding the verdict or a new trial, and entered judgment based on the jury verdict. Defendants appealed. The issues are whether: (I) the trial court erred in denying defendants’ motions for directed verdict and JNOV on the (A) malicious prosecution and (B) abuse of process claims and (II) the trial court erred in admitting evidence of Housecalls’ billing practices. I In reviewing the denial of a motion for directed verdict or a JNOV, this Court must determine whether substantial evidence of a claim was presented when all of the evidence is taken in the light most favorable to the non-moving party and all inconsistencies are resolved in the light most favorable to the non-moving party. Asfar v. Charlotte Auto Auction, Inc., 127 N.C. App. 502, 504, 490 S.E.2d 598, 600 (1997), disc. review denied, 347 N.C. 572, 498 S.E.2d 376 (1998). A Malicious Prosecution Claim The elements for a malicious prosecution claim are the following: “(1) defendant initiated the earlier proceeding; (2) malice on the part of defendant in doing so; (3) lack of probable cause for the initiation of the earlier proceeding; and (4) termination of the earlier proceeding in favor of the plaintiff.” Best v. Duke University, 337 N.C. 742, 749, 448 S.E.2d 506, 510, reh’g denied, 338 N.C. 525, 452 S.E.2d 807 (1994). Defendants contend that Ms. Stewart and Mrs. Ward did not engage in malicious prosecution because all of the elements of the action were not present. We agree. Although the fourth element of malicious prosecution, termination of the earlier proceeding in favor of plaintiff, was met, Ms. Stewart cannot be held liable for the claim because she did not initiate the action on her own accord. See Distributors, Inc. v. Dept, of Transportation, 41 N.C. App. 548, 551, 255 S.E.2d 203, 206, cert, denied, 298 N.C. 567, 261 S.E.2d 123 (1979) (employee is not liable to injury to third persons if employee is following instructions of employer unless employee knew or had reason to know that the acts would injure another). In this case, Ms. Stewart went to the magistrate’s office because she was instructed to do so by her employer, Mr. Ward, and she had no knowledge that the property had been returned or would be returned. Ms. Stewart did as instructed, and the magistrate issued a warrant charging plaintiff with conversion by a bailee of the pager and cell phone. There is no evidence in this record that Stewart acted with any malice toward the plaintiff. She reported the situation to her employer, and he made the decision to have her appear before the magistrate. Furthermore, there is no evidence that Mrs. Ward had any part in the initiation of the action. Plaintiff argues that Mrs. Ward caused the criminal prosecution against plaintiff to be “continued” by stating to Ms. Hedrick that insufficient evidence was “not the point,” and therefore this statement satisfies the initiation element of malicious prosecution. We disagree. Plaintiff has confused the tort of malicious prosecution with the tort of abuse of process which is discussed below. Improper actions taken after the issuance of process or initiation of an action are more properly considered under abuse of process. Stanback v. Stanback, 297 N.C. 181, 200, 254 S.E.2d 611, 624 (1979), overruled on other grounds by Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981). Consequently, the trial court should have dismissed the claim for malicious prosecution against both Ms. Stewart and Mrs. Ward. Although defendants also contend that the trial court should have directed a verdict as to Housecalls and Mr. Ward, we disagree and hold that the trial court correctly allowed the claim to go to the jury as to those defendants. Whether probable cause existed for the initiation of the earlier proceeding is a jury question when the facts are in dispute. Allison v. Food Lion, Inc., 84 N.C. App. 251, 255, 352 S.E.2d 256, 258 (1987). Viewed in the light most favorable to plaintiff, there was evidence from which a jury could find malicious prosecution against the remaining defendants. There must be a new trial, however, as to Housecalls and Mr. Ward on the claim for malicious prosecution. The issues were submitted in such a manner that the jury found that all the defendants maliciously instituted the prosecution and abused process, entitling plaintiff to recover compensatory damages in the total sum of $30,000.00. Because the damages for malicious prosecution and abuse of process are lumped together in one sum and we cannot say what portion of those damages is attributable to the malicious prosecution by defendants Housecalls and Mr. Ward, there must be a new trial as to those defendants to determine damages. B Abuse of Process Claim “ ‘[A]buse of process is the misuse of legal process for an ulterior purpose. It consists in the malicious misuse or misapplication of that process after issuance to accomplish some purpose not warranted or commanded by the writ. It is the malicious perversion of a legally issued process whereby a result not lawfully or properly obtainable under it is attended (sic) to be secured.’ ” Stanback, 297 N.C. at 200, 254 S.E.2d at 624 (quoting Fowle v. Fowle, 263 N.C. 724, 728, 140 S.E.2d 398, 401 (1965)). Indeed, abuse of process “ ‘requires both an ulterior motive and an act in the use of the legal process not proper in the regular prosecution of the proceeding,’ and that ‘[b]oth requirements relate to the defendant’s purpose to achieve through the use of the process some end foreign to those it was designed to effect.’ ” Id. at 201, 254 S.E.2d at 624 (quoting R. Byrd, Malicious Prosecution in North Carolina, 47 N.C.L. Rev. 285, 288 (1969)). Plaintiff argues that the efforts of Mr. and Mrs. Ward to have Ms. Hedrick continue with the criminal prosecution of plaintiff, rather than dismissing the matter, support this cause of action. We disagree. In this case, there is no evidence of any improper use of the legal process after the issuance of the criminal summons. The reason given by Ms. Hedrick for the voluntary dismissal was “insufficient evidence.” The Wards merely disagreed with her decision and sought to have the trial of the criminal matter proceed in a normal fashion. Standing alone, the statements by the Wards, that “that’s not the point” in reply to Ms. Hedrick’s explanation for dismissing the case is not sufficient to prove a willful act outside the regular course of the proceedings. Indeed, our case law states that the “act” requirement of abuse of process requires a defendant to commit some “wilful act whereby he sought to use the existence of the proceeding to gain advantage of plaintiff in respect to some collateral matter.” Stanback, 297 N.C. at 201, 254 S.E.2d at 624. An example of such an improper willful act is the offer to discontinue a proceeding in return for the payment of money. Id. Because the elements of abuse of process were not met as to any of the defendants, the trial court erred in failing to dismiss the claim for abuse of process against all the defendants. II Over-billing Testimony Rule 402 of the North Carolina Rules of Evidence states that “[e]vidence which is not relevant is not admissible.” N.C. Gen. Stat. § 8C-1, Rule 402 (1992). Relevant evidence is defined as evidence which tends “to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401 (1992). Defendants contend that evidence of Housecalls’ billing practices was irrelevant to the claims stated by plaintiff and should not have been admitted at trial. We agree that the trial court erred in allowing the evidence of billing practices and the testimony of Robert Nowell (Mr. Nowell), the Assistant Director of the State Division of Medical Assistance, Program Integrity Section. In his complaint, plaintiff alleged that defendants used the criminal process, “both before and after commencement of the criminal proceeding ... in an effort to compel the plaintiff to forego his valid claim for salary, ... in an effort to retaliate against the plaintiff for resigning from Housecalls, and in a deliberate effort to cause extreme embarrassment and expense to the plaintiff.” At trial, however, plaintiff offered voluminous evidence through his own testimony and the testimony of Mr. Nowell about Housecalls’ billing practices with respect to Medicaid. The testimony, which was admitted over defendants’ objections, had little relevance to plaintiff’s claims for unpaid wages, abuse of process, and malicious prosecution. The trial court apparently agreed with plaintiff’s contention that the evidence went to defendants’ motive in instituting criminal process against him. Plaintiff never offered any evidence, however, which would connect his information about the alleged over-billing practices with the actions of defendants in causing a warrant to be issued against him. As shown above in the quotation from his complaint, plaintiff did not allege any such motivation for defendants’ actions. Indeed, there was no evidence presented which indicated that plaintiff knew that there was an investigation by the State, or that he provided any information to the State in connection with its investigation. Plaintiff was not discharged in retaliation for any actions he might have taken; instead, plaintiff resigned on his own accord. The only evidence which remotely bears on the relevance of the over-billing evidence was plaintiff’s testimony that Mr. Ward told him that any over-billing of Medicaid would be reconciled. There is simply no competent evidence which would warrant the highly prejudicial evidence that Housecalls was investigated by the State for over-billing Medicaid in a large amount. Even had the evidence been admissible under some theory, its prejudicial effect on the jury verdict far outweighed its slight probative value. See N.C. Gen. Stat. § 8C-1, Rule 403 (even relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice”). Finally, even assuming arguendo that plaintiff’s evidence about his knowledge of over-billing practices by Housecalls was relevant and that Mr. Nowell was properly qualified as an expert witness, the testimony of Mr. Nowell was erroneously admitted to corroborate the testimony of plaintiff. Testimony offered in corroboration of other evidence may not contain additional information which was not in the initial evidence. State v. Mayhand, 298 N.C. 418, 425, 259 S.E.2d 231, 236 (1979). In this case, plaintiff offered evidence about Housecalls submitting multiple bills to Medicaid for the same services. Mr. Nowell was allowed to testify at length that in his opinion Housecalls over-billed Medicaid in two ways: first, by submitting multiple bills for the same services; and second, by “doubling up” after an initial bill was paid by doubling units and costs in subsequent billings. Mr.

MORRIS v CLAWSON TANK COMPANY Docket No. 108659. Argued October 8, 1998 (Calendar No. 18). Decided December 28, 1998. Rehearing denied post, 1234. Matthew J. Morris lost an eye in an accident unrelated to his employment as a general laborer with the Clawson Tank Company. Although his physician certified that he was able to return to work a month later, Clawson Tank discharged him. Over the next three and a half years, Morris worked at various full- and part-time jobs. During that time, he also filed a grievance, and an arbitration panel ordered his reinstatement. When Clawson Tank refused to reinstate him, claiming no position was available, Morris brought an action in the Oakland Circuit Court, Denise Langford-Morris, J., seeking enforcement of the arbitration award and asserting a cause of action under the Handicappers’ Civil Rights Act, MCL 37.1101 et seq.-, MSA 3.550(101) et seq. He later moved to seek monetary relief only, and the court ruled that reinstatement would no longer be available and declared the ruling to be the law of the case. Clawson Tank subsequently purported to recall the plaintiff to work. Following a bench trial, the court awarded the plaintiff back and front pay. The Court of Appeals, Taylor, P.J., and Corrigan and D. A Johnston, JJ., affirmed the trial court’s finding of liability, but vacated its decision, and remanded for a substantial reduction of the back-pay award and elimination of the front-pay award. 221 Mich App 280 (1997) (Docket No. 183374). The plaintiff appeals. In an opinion by Justice Brickley, joined by Chief Justice Mallett, and Justices Cavanagh and Kelly, the Supreme Court held: The Court of Appeals utilized a legally erroneous standard in determining whether the plaintiff had properly mitigated damages. It also failed to properly observe the clearly erroneous standard in reviewing the factual findings of the trial court. When evaluated in light of the proper legal standards, the trial court’s findings were not clearly erroneous, mandating reversal of the judgment of the Court of Appeals. The circuit court did not specifically determine, however, whether the defendant met its burden of showing that the plaintiff unreasonably rejected its conditional offer of employment. Remand is required to determine whether the defendant met this burden and, therefore, whether an award of front pay is appropriate. 1. In the context of a breach of an employment contract, wrongful discharge, or discriminatory firing, mitigation of damages obligates the victim of the wrongdoing to make reasonable efforts to find employment after discharge. A back-pay award of a plaintiff who succeeds at trial is then reduced by the amount earned in mitigation. While a plaintiff may not purposefully remain unemployed or underemployed in order to maximize recoverable damages in the form of lost wages, it would be inappropriate to require him to make all efforts to eliminate the economic damages resulting from the wrongdoing. Rather, he is required only to make efforts to find employment that are reasonable under the circumstances. 2. The mitigation rule also obliges the plaintiff to accept, if offered, employment that is substantially similar to that from which the plaintiff was fired. If offered employment of a like nature is rejected, the plaintiff forfeits continuing back and front pay. The defendant bears the burden of proving that the plaintiff failed to make reasonable efforts to mitigate damages. 3. The Court of Appeals applied an erroneous rule of law in holding that the evidence showed that plaintiff’s own efforts to secure similar employment were not reasonable. It collapsed the two aspects of the doctrine of mitigation into one test: In order to mitigate damages, a plaintiff must make a reasonable, good-faith effort to secure “like employment,” defining like employment as work similar in type, hours, wages, tenure, and working conditions. There is no reason to require a plaintiff to search for like employment, as defined by the Court of Appeals, in an effort to mitigate damages. The sole interest of the defendant, the courts, and the public, in the type of employment sought by the plaintiff in mitigation is the interest those parties have in avoiding unnecessary economic loss. Thus, while a defendant may object to the reasonableness of the amount of compensation typical of the jobs sought in mitigation, work conditions and type of work are relevant only to the job seeker. There is no requirement that the plaintiff find employment with compensation equivalent to that of the job lost. The Court of Appeals standard is particularly inappropriate, given that the Handicapper’s Civil Rights Act, like the Civil Rights Act and title vii of the federal Civil Rights Act, is a remedial act, the primary goal of which is to end discrimination. The plaintiff was not required to find a job that was reasonably similar to the one that he held with the defendant; rather, the relevant question is whether the plaintiff made reasonable efforts to mitigate damages. The trial judge properly stated the allocation of the burden of proof, and found that the defendant failed to meet that burden. 4. The Court of Appeals holding, that after the plaintiff basically stopped looking for work his back-pay award should have been cut off, relies on a misapplication of the principles of the doctrine of mitigation. Determining the reasonableness of a job search is a fact-laden inquiry that relies upon determinations of credibility far more within the competence of the trial court than within the competence of an appellate court. The extent to which a plaintiff continues a job search after finding employment simply is one of many facts to be taken into consideration by the factfinder. A defendant must show that the plaintiff failed to make an honest, good-faith effort to secure employment; showing that more exhaustive efforts could have been made is not sufficient. In this case, the trial court’s finding, that the plaintiff made reasonable efforts to mitigate damages, was not clearly erroneous. 5. Where an employer makes an offer of reinstatement to a plaintiff, the court must first determine whether the reinstatement offer is conditional or unconditional. The second step is to assess whether a rejection is reasonable. The first step involves a question of law for the court, while the question of reasonableness is one of fact. The Court of Appeals statement of the law was error, because it implies that acceptance of offered reinstatement is in some way meaningfully different from acceptance of like employment from another employer. The defendant’s reinstatement offer was conditional in this case, but the Court of Appeals ignored the dispute between the parties over whether the job offer in fact was legitimate, or, rather, merely a trial tactic. Because the trial court did not document its findings regarding the reasonableness of the rejection, remand to the circuit court is required for a specific finding in that regard. 6. There was no clear error in the trial court’s factual findings. Justice Weaver, joined by Justice Boyle, concurring, stated that the doctrine of mitigation requires the victim of wrongdoing to make reasonable efforts to mitigate damages or forfeit the right to back pay. Further, and pursuant to the doctrine of mitigation, where the victim of wrongdoing refuses an offer of like employment, the right to continuing back pay and front pay also is forfeited. Because the trial court’s award of back pay after August 1990 was not clearly erroneous, it should be reinstated. The plaintiff’s receipt of disability from September 1989 through February 1990 does not preclude a concurrent award of back pay, although the trial court correctly reduced the back pay award by the amount of disability payments. Remand is necessary, however, to determine whether the plaintiffs rejection of the September and October 1992 job offers was reasonable. If the defendant demon-states that the plaintiff’s rejection was unreasonable, the plaintiff is entitled to neither back pay nor front pay after October 1992. It remains unclear whether the trial court correctly applied the doctrine of mitigation to the front pay award. The facts of the case may support a modified award of front pay after plaintiff accepted a substantially similar position in February 1993. While there is an obligation to mitigate future damages, the record does not adequately reflect whether the trial court properly considered the mitigation principles with respect to future damages. It remains to be determined what constitutes future damages. Thus, the case should be remanded not only to determine whether the plaintiff was reasonable in rejecting the defendant’s September and October job offers but also to reexamine the issue of front pay. Reversed and remanded. Justice Taylor took no part in the decision of this case. Otis M. Underwood, Jr., for the plaintiff-appellant. Karl Reibel for the defendant-appellee. Brickley, J. We are called upon to determine the scope of the plaintiffs duty to mitigate damages in the context of a discriminatory discharge suit under the Handicappers’ Civil Rights Act. MCL 37.1101 et seq.\ MSA 3.550(101) et seq. i The plaintiff was employed as a general laborer by the defendant, a manufacturer of underground storage and waste tanks. The plaintiff lost an eye on August 13, 1989, in an incident not related to his work at Clawson Tank. He reported back to Clawson Tank one month later with a note from his physician stating that he was able to return to work. At this point, however, he was discharged by the defendant. With the encouragement and assistance of the defendant, the plaintiff began receiving payments under disability insurance. He continued to receive disability payments for about five months following his discharge. The plaintiff began to search for other work almost immediately after he was fired. For six months in 1990, he held a temporary job at Cranbrook School, earning $6 an hour. In August of 1990, he began working for the Barkman Landscaping Company, earning $5 an hour and often working in excess of forty hours a week. This was a seasonal job, so the plaintiff was out of work in the winter, but was rehired by Barkman the next year and in 1992 as a supervisor earning $6 an hour. Between August 1991 and February 1993, the plaintiff made approximately fifty job inquiries to landscape companies, gas stations, and similar employers. During this period, the plaintiff held several short-term, odd jobs in addition to those already described. In February 1993, the plaintiff began working in a full-time, permanent position at Cranbrook School as a janitor earning $7.46 an hour, along with health care, pension, and other benefits. During the period following his discharge, the plaintiff was also pursuing legal remedies. The plaintiff filed a grievance, seeking reinstatement at Claw-son Tank, and, on January 20, 1990, an arbitration panel ordered that he be reinstated, as long as his rehiring would not displace employees of greater seniority. The defendant claimed that no such position was available, and refused to reinstate the plaintiff. The plaintiff then filed a lawsuit, seeking to enforce the arbitration award. On September 11, 1991, the trial court allowed the plaintiff to amend his complaint to assert a cause of action under the Handicappers’ Civil Rights Act. On August 17, 1992, the plaintiff stated at a motion hearing that, because of the increasing hostility of the litigation, and the lack of trust between the parties, he would only be seeking monetary relief, and no longer wanted reinstatement at Clawson Tank. Thus, the court ruled that reinstatement was no longer an available remedy, and on October 28, 1992, the circuit judge declared this ruling to be the law of the case. The plaintiff did not amend his complaint to correspond with this ruling. On September 18, 1992, and on October 23, 1992, the defendant mailed letters to the plaintiff, purportedly recalling him to work. The plaintiff did not respond to these letters, and the parties dispute whether the job offered actually existed and, if so, whether it was actually available to the plaintiff. A bench trial in the circuit court began in April 1994. The court heard testimony regarding the plaintiffs efforts to find work after his firing, both from the plaintiff and from the defendant’s experts. The court also heard testimony from both sides regarding the genuineness of the defendant’s September/October 1992 job offer to the plaintiff. The plaintiff’s expert presented evidence that the amount of back pay lost by the plaintiff was $46,729, and that the amount of front pay lost by the plaintiff was $76,516. In January 1995, the trial court ruled for the plaintiff, finding that he had fulfilled his duty to mitigate damages and awarded him $130,439. The Court of Appeals affirmed the trial court’s finding of liability, but vacated its decision, remanding the case for a substantial reduction of the plaintiff’s back-pay award, and elimination of his front-pay award. 221 Mich App 280; 561 NW2d 469 (1997). In reaching this conclusion, the Court of Appeals articulated a number of specific holdings. The panel held that the trial court’s award of back pay for the period between October 1989 and February 1990 was clearly erroneous because the plaintiff was receiving disability benefits; therefore, “plaintiff admitted that he was disabled” during this period. 221 Mich App 287. Because the plaintiff was still disabled, there could not yet have been an “act of discrimination” by the defendant justifying damages. Id. For the period between February 1990 and August 1990, the Court of Appeals held that the trial court’s award of back pay was not clearly erroneous, “because the trial court found credible plaintiff’s claim that he was also looking for comparable employment.” Id., p 288, citing MCR 2.613(C). The Court of Appeals further held that “the trial court should have cut off back pay in August 1990, when plaintiff took a seasonal job paying $5 an hour at a landscaping company and admittedly stopped seeking other employment.” Id., p 288 (emphasis in the original). The trial count’s award of front pay was, according to the Court of Appeals, clearly erroneous on two grounds. First, the defendant’s September/October 1992 offer of employment to the plaintiff was unreasonably refused by the plaintiff. Such a refusal forfeits the plaintiff’s right to front pay. Id., pp 290-291, citing Rasheed v Chrysler Corp, 445 Mich 109, 132; 517 NW2d 19 (1994). Second, “the trial court’s award of front pay for the period after February 1993, when plaintiff obtained like employment, was clearly erroneous because plaintiff incurred no damages after that time.” Id., p 291. Plaintiff sought leave to appeal to this Court, and we granted leave. 457 Mich 853 (1998). We now reverse the Court of Appeals decision as set forth below. n Mitigation of damages is a legal doctrine that seeks to minimize the economic harm arising from wrongdoing. “Where one person has committed a tort, breach of contract, or other legal wrong against another, it is incumbent upon the latter to use such means as are reasonable under the circumstances to avoid or minimize the damages. The person wronged cannot recover for any item of damage which could thus have been avoided.” [Shiffer v Gibraltar School Dist Bd of Ed, 393 Mich 190, 197; 224 NW2d 255 (1974) (quoting McCormick, Damages, § 33, p 127).] In the context of a breach of an employment contract, wrongful discharge, or discriminatory firing, mitigation of damages obligates the victim of the wrongdoing to make reasonable efforts to find employment after discharge. Id. The plaintiffs back-pay award, if he succeeds at trial, is then reduced by the amount that he earned in mitigation. See EEOC v Harper Grace Hospitals, 689 F Supp 708, 716 (ED Mich, 1988). Such a plaintiff may not purposefully remain unemployed or underemployed in order to maximize recoverable damages in the form of lost wages. It must be remembered, however, that the plaintiff here was wrongfully discriminated against when he was fired by the defendant. 221 Mich App 284-286. It would be inappropriate to require him to make all efforts to eliminate the economic damages resulting from the wrongdoing. Rather, he is only required to make efforts that are reasonable under the circumstances to find employment. Rasheed, supra, p 124. A plaintiff who does not make such efforts loses the right to claim full back pay as damages. Id. This Court has noted that “a claimant required to make reasonable efforts to mitigate damages is not held to the highest standards of diligence. . . . ‘[T]he claimant’s burden is not onerous, and does not require him to be successful in mitigation.’ ” Rasheed, supra, p 123, quoting Rasimas v Dep’t of Mental Health, 714 F2d 614, 624 (CA 6, 1983), cert den 466 US 950 (1984). The mitigation rule also obliges the plaintiff to accept, if offered, employment that is substantially similar to that from which the plaintiff was fired. See Ford Motor Co v EEOC, 458 US 219, 231-232; 102 S Ct 3057; 73 L Ed 2d 721 (1982). This aspect of the mitigation rule balances the interest of the plaintiff in not being forced to accept an unacceptable job in order to maintain his right to back pay, against the interests of the defendant and the public in avoiding unnecessary economic loss. As the United States Supreme Court has explained, the mitigation requirement cannot be construed to force a plaintiff to accept employment that he or she finds demeaning, particularly inconvenient, or otherwise unacceptable. [T]he unemployed or underemployed claimant need not go into another line of work, accept a demotion, or take a demeaning position, [but] he forfeits his right to backpay if he refuses a job substantially equivalent to the one he was denied. [Ford Motor Co, supra, pp 231-232.] Thus, in order to mitigate damages, the plaintiff must make efforts that are reasonable under the circumstances to minimize the economic harm caused by the wrongdoer; and, if offered employment of a “like nature,” the plaintiff forfeits further back-pay awards by turning it down. Significantly, “the question whether an employee was reasonable in not seeking or accepting particular employment is one to be decided by the trier of fact.” Rasheed, supra, p 124, citing Riethmiller v Blue Cross & Blue Shield of Michigan, 151 Mich App 188, 194-195; 390 NW2d 227 (1986). The defendant bears the burden of proving that the plaintiff failed to make reasonable efforts to mitigate damages. Rasheed, supra, p 124. If the plaintiff was offered “like employment” and turned it down, the burden of proving this is likewise on the defendant. Id. In light of these principles, we now examine the holdings of the Court of Appeals. A As is made evident from this discussion of the doctrine of mitigation of damages, the Court of Appeals applied an erroneous rule of law in holding that “the evidence showed that plaintiff’s own efforts to secure similar employment were not reasonable.” 221 Mich App 287. The Court of Appeals erred in collapsing the two aspects of the doctrine of mitigation into one test: “In order to mitigate damages, a plaintiff must make a reasonable, good-faith effort to secure ‘like’ employment.” Id. The Court of Appeals defined “like employment” as “work that is similar in type, hours, wages, tenure, and working conditions.” Id. We find no reason to require a plaintiff to search for “like employment,” as defined by the Court of Appeals, in an effort to mitigate damages. The sole interest of the defendant, the courts, and the public, in the type of employment sought by the plaintiff in mitigation is the interest those parties have in avoiding unnecessary economic loss. See Shiffer, supra, p 197, “The principle of mitigation is a thread permeating the entire jurisprudenc

DEARBORN HEIGHTS SCHOOL DISTRICT NO 7 v WAYNE COUNTY MEA/NEA Docket No. 200468. Submitted February 11, 1998, at Detroit. Decided December 8, 1998, at 9:00 A.M. Dearborn Heights School District No. 7, the employer of teacher Sherrie Adis, brought an action in the Wayne Circuit Court against Wayne County MEA/NEA (Adis’ union) and Adis, seeking to have an arbitration award vacated. The union and Adis filed a counter-complaint, seeking to have the arbitration award confirmed. Adis had been suspended following proceedings in the State Tenure Commission, which decided that Adis had assaulted and battered a fellow teacher, as the school district had charged. The Court of Appeals, Griffin, P.J., and Bandstra and M. Warshawsky, JJ., in an unpublished opinion per curiam, issued August 2,1996 (Docket No. 183953), had affirmed the decision of the commission. Arbitration had concerned a grievance filed by the union that the implementation of the commission’s decision violated the terms of the collective bargaining agreement. The arbitrator had reduced the length of the suspension after finding that Adis had not committed battery. On cross-motions for summary disposition, the court, Diane M. Hathaway, J., granted summary disposition for the union and Adis, determining that the arbitrator was free to decide differently from the commission with respect to the issue whether Adis had committed assault and battery. The school district appealed. The Court of Appeals held: Collateral estoppel applied to preclude Adis and her union from relitigating, and the arbitrator from deciding anew, the question whether Adis had assaulted and battered a fellow teacher. 1. The doctrine of collateral estoppel precludes relitigation of an issue in a different, subsequent action between the same parties or their privies when the earlier proceeding resulted in a valid final judgment and the issue in question was actually and necessarily determined in that prior proceeding. In this case, the parties to the proceedings before the commission and the arbitrator were substantially identical and the question of precisely what misconduct Adis engaged in was actually determined in the proceeding before the commission. 2. Where the earlier proceeding giving rise to the question of collateral estoppel was an administrative one, the doctrine will preclude relitigation of an issue that had been necessarily decided if, as in this case, the administrative proceeding was adjudicatory in nature, a method of appeal was provided, and the Legislature intended the administrative determination to be final in the absence of an appeal. Reversed and remanded. 1. Actions — Collateral Estoppel The doctrine of collateral estoppel precludes relitigation of an issue in a different, subsequent action between the same parties or then-privies when the earlier proceeding resulted in a valid final judgment and the issue in question was actually and necessarily determined in that prior proceeding. 2. Actions — Collateral Estoppel — Identity of Parties. Collateral estoppel requires substantial, not precise, identity of parties; the purpose of this requirement is to ensure that collateral estoppel is applied only where the interests of the litigating party are adequately represented in the first proceeding; a nonparty to an earlier proceeding will be bound by the result if that party controlled the earlier proceeding or if the party’s interests were adequately represented in the original matter. 3. Actions — Collateral Estoppel — Administrative Proceedings. The doctrine of collateral estoppel will preclude relitigation of an issue that had been necessarily decided in an administrative proceeding if the administrative proceeding was adjudicatory in nature, a method of appeal was provided, and the Legislature intended the administrative proceeding to be final in the absence of an appeal. Allen, James & Foley, P.C. (by Kevin J. Foley), for Dearborn Heights School District No. 7. Fink Zausmer, P.C. (by Harvey I. Wax), for Wayne County MEA/NEA and Sherrie Adis. Before: O’Connell, P.J., and Gribbs and Smolensk, JJ. O’Connell, P.J. Plaintiff/counterdefendant Dearborn Heights School District No. 7 appeals as of right from the circuit court’s decision on a motion for summary disposition enforcing an arbitration award and denying a motion to vacate the award in favor of counter-plaintiffs. We reverse and remand. On April 18, 1994, the school district’s interim superintendent filed tenure charges against counter-plaintiff Sherrie Adis pursuant to the teacher tenure act. The charges alleged that Adis had threatened and physically assaulted another staff member. Pursuant to the statute, the school district’s board of education decided to proceed on the charges as filed. Adis contested the charges, arguing before a hearing referee of the State Tenure Commission that the assault and battery did not occur, and, alternatively, that if it did occur as alleged, it did not constitute “just and reasonable cause” for discharge. On December 5, 1994, the hearing referee issued a preliminary decision and order finding that Adis had committed the assault and battery and that she should be subject to a one-semester, unpaid suspension. Both parties objected to the determination. On February 27, 1995, the commission issued an opinion and order affirming the hearing referee’s preliminary decision but increasing the suspension from one to three semesters. This Court affirmed the commission’s decision on appeal. Adis v Dearborn Heights School Dist No 7 Bd of Ed, unpublished opinion per curiam of the Court of Appeals, issued August 2, 1996 (Docket No. 183953). Adis then decided to pursue an alternate administrative remedy. Because her employment with the school district was governed by a collective bargaining agreement, her interests in that agreement were represented by her union, defendant/counterplaintiff Wayne County MEA/NEA. The union filed grievances on Adis’ behalf, asserting that the school district violated the collective bargaining agreement by implementing the decision and order of the commission. An arbitrator heard the grievances in October and November of 1995. In an opinion dated May 7, 1996, the arbitrator, declaring that he was not bound by the commission’s earlier findings or decision, determined that Adis’ misconduct did not include a battery and that Adis should receive a one-month suspension without pay. The school district then filed a complaint in the circuit court to vacate the arbitrator’s award, arguing that the award was an abuse of discretion, arbitrary, capricious, unreasonable, based on substantial errors of law, inconsistent with the parties’ contract, and against public policy. The union filed an answer and countercomplaint to enforce the award. The parties then filed cross-motions for summary disposition. The circuit court ruled that the arbitrator was not required to follow the decision of the commission, holding that the two proceedings concerned sufficiently different issues and parties as to render principles of res judicata or collateral estoppel inapplicable. Accordingly, the court granted summary disposition in favor of counterplaintiffs. The school district presents on appeal an issue of first impression, namely, whether the doctrine of collateral estoppel applies to labor arbitration proceedings as concerns issues previously decided by the commission. We conclude that Adis is estopped from relitigating the commission’s factual conclusion that Adis had intentionally struck a fellow teacher and that upon remand the arbitrator’s assessment concerning the propriety of her suspension under the collective bargaining agreement must presume the validity of that finding. The doctrine of collateral estoppel precludes relitigation of an issue in a different, subsequent action between the same parties or their privies when the earlier proceeding resulted in a valid final judgment and the issue in question was actually and necessarily determined in that prior proceeding. See People v Gates, 434 Mich 146, 154; 452 NW2d 627 (1990); 1 Restatement Judgments, 2d, § 27, p 250. The doctrine is intended to relieve parties of multiple litigation, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication. Detroit v Qualls, 434 Mich 340, 357, n 30; 454 NW2d 374 (1990), citing Allen v McCurry, 449 US 90, 94; 101 S Ct 411; 66 L Ed 2d 308 (1980). Collateral estoppel bars relitigation of issues where the parties had a full and fair opportunity to litigate those issues in an earlier action. Arim v General Motors Corp, 206 Mich App 178, 195; 520 NW2d 695 (1994). In the instant case, the doctrine should have operated to prevent Adis and her union from relitigating the issue whether Adis intentionally struck her fellow teacher and therefore committed a battery. The question of precisely what misconduct Adis engaged in is one of fact, essential to the judgment, which was actually litigated and resolved by the commission. See Jones v State Farm Mut Automobile Ins Co, 202 Mich App 393, 401; 509 NW2d 829 (1993) (noting that a key determination concerning whether an earlier proceeding controls a later one is whether “the same facts or evidence are essential to the maintenance of the two actions”). In this case, identical factual accounts were elicited from identical witnesses before the commission and the arbitrator, the two proceedings invoking the same burden of proof. Indeed, the arbitrator admitted into evidence the entire record from the administrative proceeding, including the hearing officer’s preliminary decision and the commission’s final order. Accordingly, the commission’s factual determination should have bound the parties in the subsequent action, preventing the arbitrator from determining anew whether a battery occurred. See O’Keefe v Dep’t of Social Services, 162 Mich App 498, 509-510; 413 NW2d 32 (1987). The facts and circumstances in this case are similar to those of Ingham Co Employees’ Ass’n (ICEA) v Ingham Circuit Court, 170 Mich App 118; 428 NW2d 7 (1988). In ICEA, the circuit court found that the plaintiff was not entitled to unemployment benefits pursuant to the applicable statute because he had engaged in “misconduct” during his employment. Id. at 120-121. This Court affirmed that factual finding, id. at 121-122. The plaintiff then brought claims under the veterans’ preference act, MCL 35.401 et seq.; MSA 4.1221 et seq. In lieu of conducting a full hearing, the parties stipulated that the court could use the plaintiff’s record from the proceedings before the Michigan Employment Security Commission. ICEA, supra at 121. On appeal, this Court concluded that there was no “relevant distinction” between “misconduct” disqualifying an individual from receiving unemployment and “official misconduct” under the veterans’ preference act, and that because the Court had already affirmed the lower court’s finding of “misconduct,” the plaintiff was estopped from rehtigating that issue. Id. at 121-122. See also Viera v Saginaw Bd of Ed, 91 Mich App 555, 559- 560; 283 NW2d 796 (1979) (where the commission upheld a finding that a teacher was dismissed for reasonable and just cause, the teacher was collaterally estopped from recovering damages in a subsequent suit for breach of contract). Further, the “substantial identify” of the parties in the two proceedings at issue here supports the application of collateral estoppel. Local 98 of the United Ass’n of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of the United States & Canada, AFL-CIO v Flamegas Detroit Corp, 52 Mich App 297, 302; 217 NW2d 131 (1974) (for purposes of collateral estoppel, “[substantial identity, not precise identity, is all that is required”), citing Sunshine Anthracite Coal Co v Atkins, 310 US 381; 60 S Ct 907; 84 L Ed 1263 (1940). The purpose of the substantial-identity rule is to ensure that collateral estoppel is applied only where the interests of the litigating party are adequately represented in the first proceeding. See Nummer v Dep’t of Treasury, 448 Mich 534, 542-543; 533 NW2d 250 (1995). Thus, a nonparty to an earlier proceeding will be bound by the result if that party controlled the earlier proceeding or if the party’s interests were adequately represented in the original matter. Becherer v Merrill Lynch, Pierce, Fenner & Smith, Inc, 43 F3d 1054, 1069-1070 (CA 6, 1995). A party is one who was directly interested in the subject matter, and who had a right to defend in, or control, the proceedings, and who had a right to appeal from the judgment. Duncan v State Hwy Comm, 147 Mich App 267, 271; 382 NW2d 762 (1985), citing Howell v Vito’s Trucking & Excavating Co, 386 Mich 37, 42; 191 NW2d 313 (1971). As this Court has noted, individual employees are “substantially identical to the labor organizations which represented them as charging parties before merc.” Senior Accountants, Analysts & Appraisers Ass’n v Detroit, 60 Mich App 606, 612; 231 NW2d 479 (1975), aff’d 399 Mich 449; 249 NW2d 121 (1976). In the instant case, the same attorney represented the same parties and presented the same witnesses and evidence. Although the union may have an institutional interest of its own in enforcing the contractual requirement of just cause for discipline, Adis’ interests were adequately represented before the commission, having had every incentive and opportunity to litigate her personal interest in the tenure proceeding fully and aggressively. Further, it is clear that the union was simply acting in a representative capacity for Adis in the arbitration proceedings. Thus, there was substantial identity between the parties for purposes of invoking collateral estoppel to bring the commission’s conclusion that Adis committed assault and battery to bear on any subsequent proceedings. See Ayers v Genter, 367 Mich 675, 678-679; 117 NW2d 38 (1962). Both case law and public policy support this reasoning. As our Supreme Court has repeatedly noted, “Reviewing courts should not invade the exclusive fact-finding province of administrative agencies by displacing an agency’s choice between two reasonably differing views of the evidence.” Amalgamated Transit Union, Local 1564, AFL-CIO v Southeastern Michigan Transportation Authority, 437 Mich 441, 450; 473 NW2d 249 (1991), citing MERC v Detroit Symphony Orchestra, Inc, 393 Mich 116, 124; 223 NW2d 283 (1974). An arbitrator’s review of an administrative agency’s factual findings is subject to the same principle. Where resolution of a controversy involves both an administrative hearing and a statutorily recognized arbitration procedure, the latter should supplement, not obviate, the former. See Jackson Fire Fighters Ass’n, Local 1306, AFL-CIO v City of Jackson (On Remand), 227 Mich App 520, 525; 575 NW2d 823 (1998). If a teacher were allowed to relitigate a factual question previously decided by the commission, it would reduce the administrative process to a mere rehearsal; an employee satisfied with the commission’s findings could accept them, while a dissatisfied employee could start over with a clean slate by bringing the matter before an arbitrator. Although surely most dissatisfied litigants would enjoy a second bite at the apple, our system disfavors resort to successive litigation to resolve identical issues. Where the earlier proceeding giving rise to the question of collateral estoppel was an administrative one, the doctrine will preclude relitigation of an issue that had been necessarily decided if the administrative proceeding was adjudicatory in nature, a method of appeal was provided, and the Legislature intended the administrative determination to be final in the absence of an appeal. Nummer, supra at 542. Counterplaintiffs argue that the last of these criteria is not met in the instant case. We disagree. Several statutory indications suggest that the Legislature intended the commission’s factual determinations to be final in the absence of, or affirmance upon, an appeal. Initially, we note that MCL 38.101; MSA 15.2001 vests the commission with the authority to determine whether a tenured teacher was discharged or demoted for cause. Further, even if the teacher tenure act is silent concerning whether a determination by the commission is to be given preclusive effect, in the absence of legislative intent to the contrary, the applicability of principles of preclusion is presumed. See Nummer, supra at 548; Lumley v Bd of Regents for the Univ of Michigan, 215 Mich App 125, 133; 544 NW2d 692 (1996). Finally, it is instructive that, pursuant to the Administrative Procedures Act, the only procedure available to a party aggrieved by a final decision of the commission is direct review by the courts. MCL 24.301; MSA 3.560(201). Because the appeal process, by its very nature, does not contemplate a new, original action, the commission’s decision is clearly intended to be a final decision on the merits. See Nummer, supra at 551. Counterplaintiffs’ position in this case would leave this Court in the precarious position of having two different panels issue two potentially opposing opinions concerning one factual issue. Such circumstances are but one type of the “repetitious and needless litigation” that the doctrine of collateral estoppel is designed to prevent. Storey v Meijer, Inc, 431 Mich 368, 372; 429 NW2d 169 (1988); Nummer, supra at 541. Certainly this is not the result intended by the Legislature. A teacher alleging wrongful termination or other adverse action typically has her choice from among multiple forums and causes of action to vindicate her rights.* **** For example, the teacher may file a claim with the federal Equal Employment Opportunity Commission or the Michigan Employment Relations Commission; she may pursue a grievance through arbitration under the collective bargaining agreement; she may challenge her termination before the State Tenure Commission; or she may file suit in state or federal court with regard to a variety of statutory, common-law, or constitutional theories. The question here is, if the teacher chooses a forum, loses on the central claim, then appeals unsuccessfully to this Court, may she then relitigate her claim in a new forum? May she get a second bite at the apple? Further, if a litigant had the right to a second forum to adjudicate her rights without risk that the first adjudication were binding, one must ask, why not a third or fourth try after losing two or three times? These questions, of course, underscore the importance of finality in litigation. In this case, allowing the arbitrator to decide de novo a factual question already resolved by the commission and affirmed by this Court would invite an incongruous outcome. Because the arbitrator’s award was based on different factual findings from those of the commission, we reverse the arbitrator’s decision and remand for further proceedings consistent with this opinion. On remand, the arbitrator must accept the commission’s factual findings. Reversed and remanded. We do not retain jurisdiction. Gribbs, J. I concur in the result only. MCL 38.71 et seq.\ MSA 15.1971 et seq. Although Adis is estopped from asking the arbitrator to make factual findings concerning her misconduct contrary to the findings of the commission, she may properly ask the arbitrator to review the decision of the commission concerning the discipline to be imposed for that misconduct. Therefore, we are remanding this case to the arbitrator to permit the arbitrator to reconsider whether in light of the battery and other uncontested facts, a three-semester suspension without pay constitutes a breach of Adis’ contractual right under the collective bargaining agreement to discipline for “just cause.” Because the exercises of judgment called for in the two proceedings concerned substantially different criteria — the commission’s concern for whether Adis was suspended for cause as opposed t

WILLIAM H. PEACE, III, Petitioner v. EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Respondent WILLIAM H. PEACE, III, Petitioner v. EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Respondent No. 599A97 (Filed 4 December 1998) 1. Labor and Employment § 68 (NCI4th)— property interest in continued employment Under North Carolina law, an employee has a protected “property” interest in continued employment only if the employee can show a legitimate claim to continued employment under a contract, a state statute, or a local ordinance. 2. Public Officers and Employees § 66 (NCI4th)— State employee — just cause protection — property interest Petitioner, as a career State employee, is entitled to the “just cause” protection of the State Personnel Act and is thereby imbued with a constitutionally protected “property” interest in continued employment. N.C.G.S. § 126-35. 3. Public Officers and Employees § 66 (NCI4th)— State employee — dismissal for just cause — burden of proof on employee — due process The allocation of the burden of proof to a career State employee in an action contesting the validity of a “just cause” termination pursuant to N.C.G.S. § 126-35 does not violate procedural due process under the Fourteenth Amendment to the United States Constitution. Under the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, the individual “property” interest sought to be protected by the employee, while important and significant, is decisively outweighed by the substantial government interest in maintaining a productive and efficient work force, and there is a very minimal risk of erroneous decision making when the existing administrative and judicial review protections are utilized. U.S. Const, amend. XIV. 4. Public Officers and Employees § 66 (NCI4th)— State employee — dismissal for just cause — burden of proof on employee — N.C. law A career State employee terminated pursuant to the “just cause” provision of N.C.G.S. § 126-35 should bear the burden of proof under North Carolina law in an action contesting the validity of that termination since the employee is the party attempting to alter the status quo; and neither party in a “just cause” termination dispute has peculiar knowledge not available to the opposing party because the employee may utilize available statutory and administrative procedures to obtain all necessary information to establish and advocate his or her position. Justice Frye concurring in part and dissenting in part. Justice Whichard joins in this concurring and dissenting opinion. Justice Wynn did not participate in the consideration or decision of this case. Appeal by petitioner pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 128 N.C. App. 1, 493 S.E.2d 466 (1997), remanding an order entered by Bowen, J., on 13 March 1995 in Superior Court, Wake County. On 5 February 1998, the Supreme Court retained the Employment Security Commission’s notice of appeal of a substantial constitutional question pursuant to N.C.G.S. § 7A-30(1) and allowed discretionary review of an additional issue from the unanimous portion of that same decision of the Court of Appeals reversing and remanding an order entered by Cashwell, J., on 12 August 1994 in Superior Court, Wake County. Heard in the Supreme Court 29 May 1998. Hilliard & Jones, by Thomas Hilliard, III, for petitioner-appellant Peace. Michael F. Easley, Attorney General, by Andrew A. Vanore, Jr., Chief Deputy Attorney General; John R. Gome, Special Deputy Attorney General; and Sylvia Thibaut, Assistant Attorney General, for respondent-appellant and -appellee Employment Security Commission. LAKE, Justice. The essential question presented for review is whether the Court of Appeals erred in affirming the trial court’s determination that the State Personnel Commission improperly placed the burden of proof on the Employment Security Commission of North Carolina (ESC) in a claim for “just cause” termination pursuant to N.C.G.S. § 126-35. For the reasons discussed herein, we conclude that allocating the burden of proof to the disciplined employee does not violate that employee’s rights to due process. Accordingly, we affirm the Court of Appeals. Petitioner, William H. Peace, III, was hired by respondent ESC on 5 October 1985 as its Equal Employment Opportunity (EEO) officer. Petitioner was responsible for the direction of the employee relations section, and his duties included the administration of both internal and external EEO programs. During his employee orientation in 1985, petitioner learned that the ESC office employees maintained a petty fund, with monthly dues of $2.00. Petitioner also learned that participation in the petty fund entitled participants to an occasional cup of coffee from the personnel file room. Petitioner chose to participate in the fund, paid his monthly dues, and occasionally obtained coffee from the file room. However, petitioner’s normal habit was to obtain coffee each morning from the agency cafeteria. Generally, petitioner did not attend the staff meetings where the employees discussed office policies, including the petty fund. At some point following petitioner’s 1985 orientation, a local commercial coffee service was contracted with, and a new and separate coffee fund, with monthly dues of $3.40, was established. The office employees maintained the new coffee fund separate from and in addition to the office petty fund. Petitioner was not aware of the new coffee fund, and he was not asked to participate in or contribute to the new fund. On 10 April 1991, petitioner was involved in an incident with a coworker, Ms. Catherine High, concerning access to coffee from the personnel file room. As was his normal custom, petitioner went to the agency cafeteria the morning of 10 April 1991 to obtain a cup of coffee. However, the cafeteria was out of coffee, so petitioner proceeded to obtain coffee from the personnel file room. As he was leaving the file room, Ms. High confronted petitioner and stated, “[Y]ou are going to have to pay me for that coffee.” Petitioner refused to pay for the coffee, and a heated exchange ensued. Following the exchange, petitioner alleged that Ms. High stated, “If you get another cup of coffee and do not pay me, I’m going to get a cup of coffee and scald you with it.” Several other office employees witnessed the argument between petitioner and Ms. High. Ms. High also informed her supervisor of the incident. Petitioner contacted the magistrate’s office on the afternoon of 10 April 1991 concerning the alleged threat made by his co-worker, Ms. High. The magistrate advised petitioner that if he believed Ms. High to be capable of carrying out her threat, he should take out a warrant. Petitioner approached Ms. High following his discussion with the magistrate, seeking an apology for her earlier actions and statements. Ms. High refused to provide an apology for the morning coffee incident. Later that same afternoon, petitioner again contacted the Wake County magistrate’s office and formally filed criminal charges against his co-worker for communicating a threat. On 21 May 1991, the trial court dismissed the charge as frivolous and ordered petitioner to pay court costs. Petitioner’s supervisors did not contact or question petitioner about the coffee incident pending resolution of the criminal charges. On 5 June 1991, petitioner’s immediate supervisor, Gene Baker, informed petitioner by written memorandum of a 6 June 1991 predismissal conference. The conference culminated in a decision to discharge petitioner from employment for “unacceptable personal conduct.” A 7 June 1991 letter from Ann Q. Duncan, chairperson of ESC, further explained petitioner’s dismissal. The 7 June letter reaffirmed the dismissal for “unacceptable personal conduct,” including the taking of coffee without payment and the filing of frivolous charges against a co-worker. The letter explained that the “unacceptable personal conduct” diminished petitioner’s respect among fellow employees and called into question his reputation as the EEO officer for the ESC. Petitioner filed two appeals from the ESC’s decision to discharge him from employment. Petitioner contended (1) that the ESC lacked “just cause” to dismiss him pursuant to N.C.G.S. § 126-35; and (2) that he had been terminated in retaliation for a discrimination complaint he filed against the ESC in 1989, for violation of title VII, section 704(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3 (1988). The Civil Rights Division of the Office of Administrative Hearings (OAH) investigated petitioner’s retaliatory discharge claim pursuant to N.C.G.S. § 7A-759. The OAH found that there was reasonable cause to believe that a title VII violation had occurred. The OAH determined that petitioner could select one of three options: (1) receive a right-to-sue letter, (2) commence a contested-case hearing in OAH, or (3) do nothing. Petitioner decided to pursue his retaliatory discharge claim by commencing a contested-case hearing. As for his claim that the ESC lacked “just cause” to dismiss him, petitioner filed another petition for contested-case hearing pursuant to N.C.G.S. § 126-35. A consolidated hearing was conducted on petitioner’s two administrative appeals by Administrative Law Judge (ALJ) Sammie Chess, Jr. on 12-14 July 1993. ALJ Chess determined that under the applicable “just cause” termination statute, the ESC bears the ultimate burden of persuasion to demonstrate the validity of the termination. In his recommended decision to the State Personnel Commission (SPC), the AU concluded that the ESC had failed to meet its burden of proof and recommended petitioner’s reinstatement with back pay. In determining petitioner’s claim as to retaliatory discharge under title VII, ALJ Chess again put the burden of proof on the ESC. The ALJ then found petitioner was the victim of a retaliatory discharge, and he therefore ordered reinstatement. The SPC adopted the AU’s recommendation for petitioner’s “just cause” claim with slight modification by an order dated 3 November 1994. The SPC agreed that the ESC bore the burden of proof in a “just cause” termination and affirmed the order reinstating petitioner with back pay. The ESC petitioned for judicial review of the SPC decision and the AU decision separately, pursuant to N.C.G.S. § 150B-50. In a 12 August 1994 order, Superior Court Judge Narley L. Cashwell upheld the ALJ’s final decision as to petitioner’s retaliatory discharge claim. By order dated 13 March 1995, Superior Court Judge Wiley E Bowen reversed the SPC’s decision with prejudice and dismissed petitioner’s “just cause” claim on the basis of two prejudicial errors of law: (1) that the SPC inappropriately placed the burden of proof on the ESC, and (2) that the SPC incorrectly concluded that petitioner was dismissed without “just cause.” The ESC then appealed to the Court of Appeals Judge Cashwell’s order affirming the decision concerning petitioner’s retaliatory discharge claim. Petitioner also appealed to the Court of Appeals Judge Bowen’s order reversing the SPC’s decision to reinstate him. The Court of Appeals consolidated the ESC’s appeal and petitioner’s appeal, and both were originally heard in the Court of Appeals on 7 May 1996. See Employment Sec. Comm’n v. Peace, 122 N.C. App. 313, 740 S.E.2d 63 (1996). This Court allowed the ESC’s petition for discretionary review and thereupon remanded the case to the Court of Appeals in order for the Court of Appeals to reconsider its ruling in light of Soles v. City of Raleigh Civil Serv. Comm’n, 345 N.C. 443, 480 S.E.2d 685 (1997). Employment Sec. Comm’n v. Peace, 345 N.C. 640, 483 S.E.2d 706 (1997). On 2 December 1997, the Court of Appeals, on remand, with Judge Greene dissenting, held that the burden of proof in “just cause” claims pursuant to N.C.G.S. § 126-35 may be allocated to an employee without violating due process. The Court of Appeals ruled that while the trial court may not substitute its judgment for that of the agency with respect to the evidence, the trial court did not err in determining that the SPC’s decision and order improperly placed the burden of proof on the ESC. Employment Sec. Comm’n v. Peace, 128 N.C. App. 1, 14, 493 S.E.2d 466, 474 (1997). Therefore, the Court of Appeals remanded the matter to the superior court for further remand to the SPC for application of the proper burden of proof. Id. at 14, 493 S.E.2d at 474-75. Petitioner subsequently filed his notice of appeal, based on the dissent, to this Court on 17 December 1997. On 6 January 1998, the ESC petitioned this Court for discretionary review seeking to have this Court determine whether the OAH acted ultra vires when it adjudicated petitioner’s title VII claim. Contemporaneously with its petition for discretionary review, ESC filed with this Court a notice of appeal asserting a substantial constitutional question pursuant to N.C.G.S. § 7A-30(1) as to whether the provisions of N.C.G.S. § 7A-759(d) and (e) violate the provisions of Article IV, Sections 1 and 3 of the North Carolina Constitution. This Court entered an order allowing discretionary review and retaining ESC’s notice of appeal; upon review, we conclude this petition was improvidently allowed, and such appeal should be dismissed. With respect to the issue which this Court previously remanded to the Court of Appeals and which is again before us by virtue of the dissent, petitioner asserts that the Court of Appeals incorrectly concluded that this Court’s holding in Soles mandates the assignment of the burden of proof in “just cause” termination disputes to the employee. Petitioner also contends that the assignment of the burden of proof to the employee following a “just cause” termination violates the procedural protections required by the Due Process Clause of the Fourteenth Amendment. For the reasons stated below, we reject these assertions. Procedural due process restricts governmental actions and decisions which “deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332, 47 L. Ed. 2d 18, 31 (1976). A terminated employee must initially demonstrate a “property” interest in continued employment in order to invoke procedural due process protection. Board of Regents v. Roth, 408 U.S. 564, 570-71, 33 L. Ed. 2d 548, 557 (1972). State law determines whether an individual employee does or does not possess a constitutionally protected “property” interest in continued employment. Bishop v. Wood, 426 U.S. 341, 344, 48 L. Ed. 2d 684, 690 (1976). Under North Carolina law, an employee has a protected “property” interest in continued employment only if the employee can show a legitimate claim to continued employment under a contract, a state statute or a local ordinance. Nantz v. Employment Sec. Comm’n, 290 N.C. 473, 226 S.E.2d 340 (1976). The North Carolina General Assembly created, by enactment of the State Personnel Act, a constitutionally protected “property” interest in the continued employment of career State employees. N.C.G.S. § 126-35 provides, in pertinent part, that “[n]o career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause.” N.C.G.S. § 126-35(a) (1995). It is undisputed in the case sub judice that petitioner, as a career State employee, is entitled to the “just cause” protection of the State Personnel Act and is thereby imbued with a constitutionally protected “property” interest. Board of Regents, 408 U.S. at 577, 33 L. Ed. 2d at 561; Leiphart v. N.C. Sch. of the Arts, 80 N.C. App. 339, 348, 342 S.E.2d 914, 921, cert. denied, 318 N.C. 507, 349 S.E.2d 862 (1986). While the demonstration of a protected “property” interest is a condition precedent to procedural due process protection, the existence of the “property” interest does not resolve the matter before this Court. We must inquire further and determine exactly what procedure or “process” is due. The fundamental premise of procedural due process protection is notice and the opportunity to be heard. Cleveland Bd. of Educ. v Loudermill, 470 U.S. 532, 542, 84 L. Ed. 2d 494, 503 (1985). Moreover, the opportunity to be heard must be “at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552, 14 L. Ed. 2d 62, 66 (1965). While the United States Supreme Court has consistently held that some form of hearing is required prior to a final deprivation of a protected “property” interest, the exact nature and mechanism of the required procedure will vary based upon the unique circumstances surrounding the controversy. Mathews, 424 U.S. at 333, 47 L. Ed. 2d at 32; Wolff v. McDonnell, 418 U.S. 539, 557-58, 41 L. Ed. 2d 935, 952 (1974). The United States Supreme Court has never required the allocation of a particular burden of proof in an employee termination dispute. In Lavine v. Milne, 424 U.S. 577, 47 L. Ed. 2d 249 (1976), the Supreme Court did recognize the important and potentially dispositive effect of the allocation of the burden of proof. However, in that decision, the Court also stated, “[o]utside the criminal law area, where special concerns attend, the locus of the burden of persuasion is normally not an issue of federal constitutional moment.” Id. at 585, 47 L. Ed. 2d at 256. Only in cases involving the deprivation of a fundamental right has the United States Supreme Court found a constitutionally protected right to a particular allocation of the burden of proof. See Santosky v. Kramer, 455 U.S. 745, 71 L. Ed. 2d 599 (1982) (termination of parental rights); Addington v. Texas, 441 U.S. 418, 60 L. Ed. 2d 323 (1979) (fundamental right to physical liberty associated with involuntary commitment to state hospital); Speiser v. Randall, 357 U.S. 513, 2 L. Ed. 2d 1460 (1958) (fundamental right to freedom of speech). Fundamental rights are those rights “deeply rooted in this Nation’s history” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U.S. 702, 721, 138 L. Ed. 2d 772, 787-88 (1997). The United States Supreme Court has held that an interest in continued employment is not a constitutionally protected fundamental right, but rather a “property” right subject to traditional procedural due process protections. Board of Regents, 408 U.S. at 576-78, 33 L. Ed. 2d at 560-61. In this case, petitioner has failed to identify the impingement of any fundamental right in his “just cause” termination claim. The United States Supreme Court, in Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, set forth a three-part balancing test to determine the appropriate procedures required to comply with procedural due process protection in any given situation. The Supreme Court in Mathews reiterated that procedural due process protection is a flexible, not fixed, concept governed by the unique circumstances and characteristics of the interest sought to be protected. The Court there identified the following three factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. at 335, 47 L. Ed. 2d at 33. There is no dispute that the initial Mathews-Eldridge factor, the private interest affected by the official action, is of significant importance in the matter before this Court. The ability to obtain and retain employment is of utmost concern to individuals as they strive to provide support for themselves and their families, as well as in seeking to achieve their aspirations and goals. The United Stat

CREMONTE v MICHIGAN STATE POLICE Docket Nos. 195669, 195670. Submitted September 8, 1998, at Lansing. Decided October 20, 1998, at 9:00 A.M. Leave to appeal sought. Thomas A. Cremonte brought actions in the Livingston Circuit Court and the Court of Claims against the Michigan State Police, his employer, alleging in the circuit court complaint that the defendant, in violation of the Civil Rights Act, MCL 37.2101 et seq.\ MSA 3.548(101) et seq., denied him promotion on the basis of his age or in retaliation for his opposition to policies of the defendant that discriminated against employees on the basis of age, race, and gender, and alleging in the Court of Claims complaint, for the same alleged conduct by the defendant, a violation of “public policy embodied in the Michigan and United States Constitutions” and a violation of equal protection under the state constitution. The parties stipulated to a joint trial, with the circuit court action tried before a jury. After five days of trial, the court, Daniel A. Burress, J., granted a motion by the plaintiff to amend the circuit court complaint to add claims of racial and gender discrimination. The jury found the defendant liable with regard to all claims and awarded the plaintiff damages. In the Court of Claims action, the court found the defendant liable for racial and gender, but not age, discrimination and awarded the plaintiff damages. The defendant appealed the jury verdict in the circuit court action and the award of damages in the Court of Claims action. The appeals were consolidated. The Court of Appeals held: 1. The defendant did not raise at trial, and therefore failed to preserve for appellate review, its claim that the plaintiff did not show that he opposed a violation of the Civil Rights Act, as required under MCL 37.2701(a); MSA 3.548(701)(a). 2. The trial court abused its discretion by allowing the plaintiff to amend his circuit court complaint midtrial. Pleadings may be amended to conform to evidence introduced at trial only where issues not raised by the pleadings are tried by express or implied consent of the parties, MCR 2.118(C)(1), or, if evidence is objected to at trial on the ground that it is not within the issues raised by the pleadings, where the party seeking amendment satisfies the court that the amendment and the admission of evidence will not prejudice the objecting party in its action or defense, MCR 2.118(C)(2). Here, the defendant did not consent to amendment of the complaint and the plaintiff did not show that the defendant would not be prejudiced by amendment. 3. The trial court erred in awarding damages for a violation of the state constitution. While the propriety of an inferred damage remedy arising directly from violations of the state constitution has been recognized in Smith v Dep’t of Public Health, 428 Mich 540 (1987), aff’d sub nom Will v Michigan Dep’t of State Police, 491 US 58; 109 S Ct 2304; 105 L Ed 2d 45 (1989), the availability in this case of a remedy under the Civil Rights Act obviates any need for an inferred damage remedy. Circuit court jury verdict reversed and circuit court case remanded for new trial; Court of Claims award of damages reversed. 1. Pleadings — Midtkial Amendment of Pleadings — Court Rules. A party whose evidence is objected to at trial on the ground that it is not within the issues raised by the pleadings is not allowed to amend its pleadings to conform the pleadings to the evidence unless the party satisfies the trial court that the amendment and the admission of the evidence will not prejudice the objecting party in its action or defense (MCR 2.118[C][2]). 2. Civil Rights — Civil Rights Act — Employment Discrimination — Dam- ages — Michigan Constttution. A damage remedy for violations of the state constitution may be inferred from the constitution in certain cases; no inferred remedy applies to claims of employment discrimination based on age, race, or gender or to claims of retaliation for opposing discriminatory employment practices or policies in view of remedies available under the Civil Rights Act (Const 1963, art 1, § 2; MCL 37.2101 et seq.; MSA 3.548(101) et seq.f Malley & Fett, P.C. (by James K. Fett and Marla A. Linderman), for the plaintiff. Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Richard P. Gartner, Assistant Attorney General, for the defendant. Before: Jansen, P.J., and Neff and O’Connell, JJ. O’Connell, J. This is an employment discrimination and retaliation case. In Docket No. 195669, defendant appeals a jury verdict in favor of plaintiff. We reverse and remand. In Docket No. 195670, defendant appeals the trial court’s damage award in the Court of Claims action. We reverse. The facts relevant to this appeal are fairly straightforward. Plaintiff is a white male and has been a Michigan State Police Trooper since 1977. Although he has been eligible for promotion for a number of years, he has not been promoted. In the years preceding this suit, plaintiff derided his superiors for hiring and promoting employees pursuant to an affirmative action program. He also wrote a memo questioning Ms superiors’ use of seMority as a factor in promotion decisions, arguing that low semority troopers were bemg promoted more often than Mgh seMority troopers. During tMs time, defendant was hiring and promoting pursuant to an affirmative action program. Defendant was also participating in a system of “augmented certification,” that, in certain circumstances, gave favorable treatment to women and minorities. Plaintiff originally filed a complaint in the Livmgston Circuit Court allegmg that the MicMgan State Police failed to promote him on the basis of Ms age or m retaliation for Ms opposition to MicMgan State Police policies that discriminated against certain employees on the basis of their age, race, and gender. Plaintiff also filed a Court of Claims complaint allegmg a violation of “the public policy embodied in the MicMgan and Urnted States Constitutions” and a violation of equal protection under the MicMgan Constitution. The parties stipulated jomder of the two actions, with the circmt court action to be decided by a jury and the Court of Claims action to be decided by the circmt judge. During the trial, plaintiff amended Ms circmt court complaint to add claims of race and gender discrimination. At trial, plaintiff argued that he has not been promoted because he opposed violations of the Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq., and because of Ms age, race, and gender. Defendant argued that plaintiff was not promoted because he did not have the qualities of a leader. Using a special-verdict form, the jury found defendant liable on all claims and awarded plaintiff $850,000 in damages. In the Court of Claims action, the trial court found defendant not hable on plaintiffs public policy and age claims, but found defendant hable for race and gender discrimination in violation of the Michigan Constitution, and awarded plaintiff $850,000. The trial court then added costs and interest to both awards, and attorney fees to the circuit court award. DOCKET NO. 195669 On appeal, defendant first argues that plaintiff failed to prove a prima facie case of retahation. Defendant contends that plaintiff did not show that he opposed a violation of the Civil Rights Act, as required under MCL 37.2701(a); MSA 3.548(701)(a). While it appears that this argument has merit, defendant failed to raise it below. Thus, this issue is unpreserved, and we will not review it. Napier v Jacobs, 429 Mich 222, 237-238; 414 NW2d 862 (1987). Defendant next argues that the trial court abused its discretion in allowing plaintiff to amend his complaint midtrial. We agree. MCR 2.118(C) provides for the amendment of pleadings to conform to the evidence introduced at trial: (1) When issues not raised by the pleadings are tried by express or implied consent of the parties, they are treated as if they had been raised by the pleadings. In that case, amendment of the pleadings to conform to the evidence and to raise those issues may be made on motion of a party at any time, even after judgment. (2) If evidence is objected to at trial on the ground that it is not within the issues raised by the pleadings, amendment to conform to that proof shall not be allowed unless the party seeking to amend satisfies the court that the amendment and the admission of the evidence would not prejudice the objecting party in maintaining his or her action or defense on the merits. The court may grant an adjournment to enable the objecting party to meet the evidence. Our Supreme Court has addressed the difference between amendments before trial and amendments during trial: MCR 2.118(C)(2) establishes strict requirements for amending a pleading during trial. Unless the party requesting amendment “satisfies the court that. . . amendment. . . would not prejudice the objecting party,” amendment “shall not be allowed.” This rule contrasts sharply with the free amendment allowed before trial. [Dacon v Transue, 441 Mich 315, 333; 490 NW2d 369 (1992). ] Here, the trial court allowed plaintiff to amend his complaint on the basis of a motion brought after five days of trial. In granting the motion, the trial court placed a great deal of emphasis on the fact that the parties both referenced race and gender claims in their opening statements. According to the trial court, plaintiff’s counsel “opened the door” to race and gender claims in his opening argument, and defendant failed to object. The trial court also focused on defense counsel's statements at the beginning of the third day of trial. At that time, defense counsel essentially stated that he had always perceived the case as a reverse discrimination case, but, after reviewing the pleadings, he realized that plaintiff was claiming only age discrimination and retaliation. The trial court felt that defense counsel’s statements were crucial: “It appears to me from my recollection now that there was a defining moment in this case, and I can’t remember what day that was, where [defense counsel] came in and said, I had a chance to really look at this case. And I was trying something different than what [plaintiff alleged in his complaint].” The trial court apparently concluded that defense counsel was prepared to defend against claims of race and gender discrimination. After discussing the amendment during the sixth day of trial, a Wednesday, the trial court put the matter off and finished the day’s testimony. There was no action on the case on Thursday, and on Friday morning the parties came in to further argue the motion to amend. Plaintiff’s attorney essentially argued that, on the basis of defense counsel’s statements on the third day of trial, defendant was not “in a position to argue that they were actually prejudiced.” Defense counsel responded: “[W]hen I prepared for that opening statement I had corrected my erroneous belief and no longer thought it was [a race and gender case].” The trial court continued its focus on the opening statements, asking defense counsel: “Do you agree that it was laid out in the opening statements it was clearly laid out in that fashion to the jury?” After listening to both attorneys, the trial court questioned defense counsel: “Mr. Gartner, if I were to grant the motion, tell me how you would be prejudiced and what you would need to cure that prejudice.” After additional arguments, the trial court granted the motion: Rule 2.118 (C)(1) [and] (2) take a liberal approach towards conforming the pleadings to the proofs, and they include safety valves of prejudice, hi this case, it’s clear to me that the issue [sic] of retaliation, age, gender, sex, race was [sic] clearly laid on the table, and in the Plaintiff’s opening statement not objected to by the Defendant; and, in fact, responded to by the Defendant in their [sic] opening statement. The case was really being tried on those issues until what I call the moments of enlightenment came on this record, at least which would be February 2nd, 1996 after we had gone through a number of witnesses when the matter was brought up by [defense counsel], I am satisfied that substantial justice can be achieved and complete relief as it relates to this case can be submitted to the jury. I’m going to allow the amendment as indicated. The trial court went on to describe the remedial measures it would allow defendant to use to “shore up the defense.” The court also noted that the trial was being delayed for one week anyway, because of the judge’s and jurors’ schedules, which would give the defense time to prepare. The trial court applied the wrong analysis and standard in granting plaintiffs motion. In focusing on the opening statements, the trial court was apparently trying to apply MCR 2.118(C)(1). In other words, the trial court was trying to decide whether defendant had impliedly consented to the additional claims. This was improper, because defense counsel made it clear on the third day of trial that he was not consenting to the trial of race and gender issues. In fact, defense counsel vigorously opposed the introduction of evidence on those issues. When plaintiff brought his motion to amend two days later, any “implied consent” had long since been revoked. Thus, MCR 2.118(C)(1) was inapplicable. The trial court’s statement that MCR 2.118(C)(2) “takes a liberal approach” toward amendments was clearly incorrect as a matter of law. As noted above, our Supreme Court has made it clear that MCR 2.118(C)(2) establishes strict requirements that must be met by the party requesting amendment. Dacon, supra at 333. Otherwise, the amendment “shall not be allowed.” Id. The trial court compounded its error by asking defendant to establish the nature and extent of any prejudice, when the court rule clearly places that burden entirely on the party requesting amendment, in this case, plaintiff. After a thorough review of the record, it is clear that plaintiff did not meet the requirements of MCR 2.118(C)(2), and we conclude that the trial court abused its discretion in granting plaintiff’s motion to amend. Plaintiff argues on appeal that defendant could not have been surprised by the amendment and that defendant was not prejudiced by it. First, we note that this argument is not especially convincing coming from the party who had the ability to avoid this issue by simply amending before trial. Second, it is clear that the addition of race and gender claims changed the nature of the case. The added claims placed new factual questions at issue and changed the import of evidence that had already been admitted. Under these circumstances, plaintiff could not have shown an absence of prejudice to defendant. As our Supreme Court has recognized, “ ‘litigation may proceed to a point where the opposing party cannot reasonably be expected to defend against the amendment; this is an especially pertinent factor on the eve of, during, or after trial.’ ” Weymers v Khera, 454 Mich 639, 659; 563 NW2d 647 (1997) (quoting Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 663; 213 NW2d 134 [1973]). In this case, litigation had proceeded well past the point where defendant could reasonably have been expected to defend against plaintiff’s amendment. Therefore, we reverse the jury verdict in Docket No. 195669 and remand for a new trial. DOCKET NO. 195670 Defendant argues that the trial court erred in awarding plaintiff monetary damages for a constitutional violation. We agree. In a splintered opinion, our Supreme Court has addressed the question whether a plaintiff may sue the state for damages for a violation of the Michigan Constitution. Smith v Dep’t of Public Health, 428 Mich 540; 410 NW2d 749 (1987), aff’d sub nom Will v Michigan Dep’t of State Police, 491 US 58; 109 S Ct 2304; 105 L Ed 2d 45 (1989). After a thorough review of United States Supreme Court decisions on point, two justices declined to find such a remedy. Id. at 612-632 (Justice Brickley, joined by Chief Justice Riley). However, four other justices “would recognize the propriety of an inferred damage remedy arising directly from violations of the Michigan Constitution in certain cases.” Id. at 647 (Justice Boyle, joined by Justice Cavanagh), 658 (Justice Archer, joined by Justice Levin). While the Court did not precisely identify which cases would justify an inferred damage remedy, Justice Boyle offered some guidance: We would recognize the propriety of an inferred damage remedy arising directly from violations of the Michigan Constitution in certain cases. As the Bivens [v Six Unknown Federal Narcotics Agents, 403 US 388, 407; 91 S Ct 1999; 29 L Ed 2d 619 (1971)] Court recognized, there are circumstances in which a constitutional right can only be vindicated by a damage remedy and where the right itself calls out for such a remedy. On the other hand, there are circumstances in which a damage remedy would not be appropriate. The absence of any other remedy would, as in Bivens, heighten the urgency of the question. Justice Harlan, concurring in Bivens, states that “[t]he question then, is, as I see it, whether compensatory relief is ‘necessary’ or ‘appropriate’ to the vindication of the interest asserted.” 403 US 407. In answering this question in the positive, Justice Harlan commented, “[f]or people in Bivens’ shoes, it is damages or nothing.” Id., p 410. Where a statute provides a remedy, the stark picture of a constitutional provision violated without remedy is not presented. [Id. at 647.] Justice Boyle went on to look at other factors that might weigh for or against an inferred damage remedy. One of those factors calls for a court “to consider the text, history, and previous interpretations of the specific provision for guidance on the propriety of a judicially inferred damage remedy. The provision itself may commit creation of a remedy to the Legislature rather than the courts.” Id. at 650-651. Art 1, § 2 of the Michigan Constitution of 1963 states: The last line of the section certainly weighs against an inferred damage remedy. Indeed, that sentence alone could be viewed as dispositive of this issue. See Smith, supra at 632 (opinion of Brickley, J.). hi addition, the availability of a remedy under the Civil Rights Act obviates any need for an inferred damage remedy in age, race, or gender discrimination cases, or in retaliation cases. Here, plaintiff could, and did, file a Civil Rights Act action against defendant. Thus, we have no trouble concluding that this was not an appropriate case in which to infer a damage remedy. For this reason, we must reverse the trial court’s damage award in Docket No. 195670. No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation. Docket No. 195669: Reversed and remanded for a new trial. We do not retain jurisdiction. Docket No. 195670: The trial court’s damage award is reversed. Several of plaintiff’s writings were introduced at trial. These writings included statements regarding affirmative action. One statement came from plaintiff’s evaluation of a State Police instructor: Once again our department is using officers with far too little experience to teach programs which relate to patrols. I respect only those that I know in my own mind are qualified to teach those areas. Those promoted under the auspices of “affirmative action” are not worthy of respect, or my attention. Having been a 21 yr resident of Detroit I did not appreciate [the instructor] ridiculing the Detroit Police tactics of the 60’s. When I was a kid I could walk the streets of Detroit and was safe. S.T.R.E.S.S. and the “Big Four,” both of which [the instructor] attacked were responsible for the safe streets. Its [sic] very

BURCHETT v RX OPTICAL Docket No. 196681. Submitted January 13, 1998, at Grand Rapids. Decided October 9, 1998, at 9:15 AM. Leave to appeal denied 459 Mich_. Lisa and John Burchett and their minor son, Jacob Burchett, by his next friend, Lisa Burchett, brought an action in the Kalamazoo Circuit Court against Rx Optical, Lisa Burchett’s former employer. The plaintiffs alleged that the defendant terminated Lisa Burchett’s employment after she went on disability for a medical condition related to her pregnancy with Jacob Burchett and after she complained to the Michigan Department of Labor that the defendant was docking her pay for mistakes made on the job. The plaintiffs alleged that the termination violated the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seq.; MSA 17.428(1) et seq., the Civil Rights Act (cra), MCL 37.2101 et seq.; MSA 3.548(101) et seq., the Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq., and the Family and Medical Leave Act (fmla), 29 USC 2601 et seq. John Burchett claimed loss of consortium, and Jacob Burchett claimed that the defendant’s actions caused Lisa Burchett to suffer stress while pregnant, resulting in the premature birth and injury of Jacob Burchett. The defendant moved for summary disposition. The court, Philip D. Schaefer, J., denied the motion with respect to Lisa and John Burchett, but granted the motion with respect to Jacob Burchett. The parties settled the claims of Lisa and John Burchett. Jacob Burchett, by his next friend, appealed the order summarily dismissing his claims under the cra, the hcra, and the wpa. The Court of Appeals held: 1. Jacob Burchett cannot maintain a cause of action under the cra for damages for injuries allegedly sustained as a result of the alleged violation of Lisa Burchett’s civil rights. The language of subsection 801(1) and § 202 of the cra indicate legislative intent that only the person whose civil rights were violated in a given case may bring an action under the cra. 2. Jacob Burchett cannot maintain a cause of action under the hcra for damages for injuries allegedly sustained as a result of the alleged violation of Lisa Burchett’s rights under the hcra. The purposes and goals of the hcra are the same as those of the cra, and language in the hcra similarly indicate legislative intent that only the person whose rights under the hcra were violated in a given case may bring an action under the hcra. 3. Jacob Burchett cannot maintain a cause of action under the wpa for damages for injuries allegedly sustained as a result of alleged retaliatory actions taken against Lisa Burchett. Although the wpa has purposes and goals that are distinct from those of the cra and the hcra, all three acts are given like treatment. Jacob Burchett cannot maintain an action under the wpa for the same reasons that he cannot maintain an action under the cra and the hcra. Affirmed. Neff, P.J., concurring in part and dissenting in part, stated that Jacob Burchett cannot maintain an action under the wpa, but should be allowed to proceed under the cra and the hcra. Regardless of whether Jacob Burchett’s action under the cra and the hcra is derivative or independent of his mother’s action under the cra and the hcra, nothing in the cra and the hcra precludes Jacob Burchett’s claim. 1. Civil Rights — Civil Rights Act — Handicappers’ Civil Rights Act —• Infants. An action under the Civil Rights Act or the Handicappers’ Civil Rights Act may be brought and maintained only by those whose rights under either act are violated; an infant who claims injury only from discriminatory conduct directed at its mother while pregnant with the infant cannot maintain an action under either act (MCL 37.1101 et seq., 37.2101 et seq.; MSA 3.550[101] et seq., 3.548[101] et seq.). 2. Master and Servant — Whistleblowers’ Protection Act — Infants. An action under the Whistleblowers’ Protection Act may be brought and maintained only by those employees who report violations or suspected violations of law by their employers; an infant who claims injury only from retaliatory conduct directed at its mother while pregnant with the infant cannot maintain an action under the act (MCL 15.361 et seq.; MSA 17.428[1] et seq.). Durant, Piper & Sorei (by William F. Piper), for the plaintiff. Mary E. Delehanty, for the defendant. Before: Neff, P.J., and Sawyer and Murphy, JJ. Murphy, J. Plaintiff appeals as of right from the order granting in part and denying in part defendant’s motion for summary disposition. We affirm. This case arises out of Lisa Burchett’s termination of employment as an optician with defendant. However, this appeal only addresses the claims involving plaintiff’s son, Jacob. Lisa began working at Rx Optical in 1992. In December 1994, she became pregnant and informed her supervisor. On January 1, 1995, Lisa received a paycheck from which defendant had deducted money pursuant to its policy that its opticians would be responsible for mistakes made on accounts. On January 4, 1995, plaintiff contacted the Michigan Department of Labor to report defendant’s policy of requiring opticians to reimburse defendant for mistakes that they made on certain accounts. Upon discovering that defendant’s policy was illegal, Lisa informed both the owner and the president of Rx Optical. That same day, Lisa experienced vaginal bleeding and her doctor instructed her to go home. The next day, she was placed on a two-week disability leave; however, before the end of this two-week period she was terminated from her job for allegedly having a bad attitude. On March 16, 1995, Lisa and John Burchett, her husband, filed an action alleging that Lisa’s termination violated the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seq.; MSA 17.428(1) et seq., the Civil Rights Act (CRA), MCL 37.2101 et seq.; MSA 3.548(101) et seq., the Michigan Handicappers’ Civil Rights Act (hora), MCL 37.1101 et seq.; MSA 3.550(101) et seq., and the Family and Medical Leave Act (fmla), 29 USC 2601 et seq. John Burchett alleged that because of Lisa’s termination, he suffered loss of consortium. Following the premature birth of their son, Jacob, the Burchetts amended their complaint to add Jacob as a party, alleging that defendant’s actions caused Lisa to suffer stress, which resulted in Jacob’s premature birth and associated injuries. Defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and (10). Although plaintiff may very well have had considerable problems establishing that defendant’s alleged violations of the statutes proximately caused the alleged injuries to Jacob, the trial court did not reach the issue of proof. Rather, the trial court granted the motion with respect to the claims involving Jacob under MCR 2.116(C)(8) (failure to state a claim on which relief can be granted). The trial court denied defendant’s motion for summaiy disposition with respect to John and Lisa Burchett’s claims; however, the parties settled those claims after the trial court’s order. Plaintiff appeals from the trial court’s dismissal of Jacob’s claims. We review de novo a trial court’s decision to grant a motion for summary disposition. Citizens Ins Co v Bloomfield Twp, 209 Mich App 484, 486; 532 NW2d 183 (1995). A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of a claim and only permits consideration of the pleadings. Wade v Dep’t of Corrections, 439 Mich 158, 162; 483 NW2d 26 (1992). A trial court should grant a motion for summary disposition under MCR 2.116(C)(8) only where a claim is so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. Id. Plaintiff argues that Jacob should be allowed to maintain a cause of action under the cra, the hcra, and the wpa. Plaintiff does not challenge the trial court’s decision with respect to the fmla. The fundamental purpose of statutory construction is to discover and give effect to the intent of the Legislature. Ansell v Dep’t of Commerce (On Remand), 222 Mich App 347, 355; 564 NW2d 519 (1997). Once discovered, the Legislature’s intent must prevail, any existing rule of construction to the contrary notwithstanding. Id. Where reasonable minds may differ about the meaning of the statute, we look to the objective of the statute and the harm it is designed to remedy and apply a reasonable construction that best accomplishes the Legislature’s purpose. Id. Although we appreciate the remedial nature of these acts and recognize that appellate courts have consistently construed these acts liberally, see Chmielewski v Xermac, Inc, 457 Mich 593; 580 NW2d 817 (1998) (the HCRA); Chandler v Dowell Schlumberger Inc, 456 Mich 395, 398; 572 NW2d 210 (1998) (the wpa); Reed v Michigan Metro Girl Scout Council, 201 Mich App 10, 15; 506 NW2d 231 (1993) (the CRA), we are not prepared to say that the Legislature, by its adoption of these acts, intended to create a cause of action for physical injuries to an infant, allegedly resulting from a stress-induced premature birth caused by unlawful employment discrimination directed at the infant’s mother. We first address whether Jacob can maintain a cause of action under the CRA. In Eide v Kelsey-Hayes Co, 431 Mich 26; 427 NW2d 488 (1988), our Supreme Court addressed a distinctly different question. In that case, the Court addressed whether a derivative cause of action for loss of consortium is precluded by the CRA. Id., 28. According to the majority in Eide, “a claim for loss of consortium is simply one for loss of society and companionship,” which needs no independent statutory authority for it to be brought. Id., 29-30. What is necessary is that the impaired spouse has sustained some legally cognizable harm or injury — in Eide, injuries from sexual harassment in violation of the CRA — resulting in a loss of society and companionship to the unimpaired spouse. Id., 29. Because “courts have consistently treated loss of consortium not as an item of damages, but as an independent cause of action,” Justice Boyle, writing for the majority, framed the issue before the Court as “not whether a cause of action [for loss of consortium] is available under the Civil Rights Act, but whether there is anything in the act which would preclude this independent cause of action.” Id., 29-30 (emphasis added). Stated differently, a loss of consortium claim is not a claim under the CRA at all, but a claim at common law. Id., 33-34, citing Prosser & Keeton, Torts (5th ed), § 125, pp 931-934. Our Supreme Court concluded that neither the plain language of the CRA nor conventional rules of statutory construction support the argument that the Legislature intended to preclude a cause of action for loss of consortium. Id., 31, 34. In our view, the question before this Court is entirely different. Unlike the loss of consortium claim, the claim presented here is not an independent cause of action rooted in the common law. While it is true that Michigan common law recognizes a claim of negligence on behalf of a fetus for prenatal injury if (1) the fetus is later bom alive, or (2) the fetus was viable at the time of injury, Jarvis v Providence Hosp, 178 Mich App 586, 591; 444 NW2d 236 (1989), the cause of action presented in this case is not a negligence claim. Rather, the claim made by lisa Burchett, as next friend of her son Jacob, can only be perceived as a civil rights claim brought directly under the CRA. In other words, we are asked to decide not whether there is anything in the CRA that would preclude an infant’s independent cause of action for physical injuries, resulting from a premature birth that was allegedly caused by employment discrimination against the infant’s pregnant mother, but whether the infant can maintain such a cause of action directly under the CRA. We believe that the CRA cannot be so broadly construed as to authorize such a claim. Statutory analysis necessarily begins with the language of the statute in question. House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993). The civil enforcement provision of the CRA provides: A person alleging a violation of this act may bring a civil action for appropriate injunctive relief or damages, or both. [MCL 37.2801(1); MSA 3.548(801)(1).] Although remedial statutes are to be liberally construed to suppress the evil and advance the remedy, Eide, supra, 34, we are not convinced that the Legislature intended to allow an infant to pursue a cause of action for injuries that the infant has incurred as a result of a civil rights violation inflicted upon the infant’s mother, irrespective of whether the infant has alleged that prenatal or postnatal injuries were incurred as a result of the civil rights violation. Enacted by the Michigan Legislature in 1976 to supplant the Fair Employment Practices Act, the CRA prohibits discrimination based on sex, race, national origin, religion, height, weight, or marital status in employment, housing, use of public accommodations, public service, and educational facilities. With respect to discrimination in employment, the CRA provides: (1) An employer shall not do any of the following: (a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status. (b) Limit, segregate, or classify an employee or applicant for employment in a way that deprives or tends to deprive the employee or applicant of an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of religion, race, color, national origin, age, sex, height, weight, or marital status. (c) Segregate, classify, or otherwise discriminate against a person on the basis of sex with respect to a term, condition, or privilege of employment, including, but not limited to, a benefit plan or system. [MCL 37.2202; MSA 3.548(202).] In our view, when this portion of the CRA is read with the civil enforcement provision of the act, we are compelled to conclude that the Legislature intended to authorize only the person whose civil rights were violated to bring a cause of action under the CRA. Because plaintiff does not claim that defendant violated Jacob’s civil rights but, rather, alleges that Jacob suffered damages as a result of the violation of the civil rights of Jacob’s mother, we conclude that Jacob cannot maintain a cause of action directly under the CRA. Plaintiff next argues that Jacob should be allowed to maintain a cause of action under the HCRA. However, the HCRA has the same purposes and goals as the CRA, and this Court has held that claims under the hcra should be treated similarly to those under the cra. Milnikel v Mercy-Memorial Medical Center, Inc, 183 Mich App 221, 223-224; 454 NW2d 132 (1989). Further, the civil enforcement provision of the hcra is identical to that of the CRA. See MCL 37.1606(1); MSA 3.550(606)(1). Therefore, for the reasons set forth above, we likewise decline to interpret the hcra as authorizing Jacob’s claim. Plaintiff also argues that Jacob should be allowed to maintain a cause of action under the wpa. Although the wpa and the civil rights acts do not share identical purposes and goals — the wpa is designed to protect the public by protecting employees who report violations or suspected violations of the law to a public body, Dolan v Continental Airlines, 454 Mich 373, 378; 563 NW2d 23 (1997) — case law nonetheless supports the conclusion that the wpa, the cra, and the HCRA deserve like treatment. See Stewart v Fairlane Community Mental Health Centre (On Remand), 225 Mich App 410, 421; 571 NW2d 542 (1997); Anzaldua v Band, 216 Mich App 561, 580-581; 550 NW2d 544 (1996). Further, the civil enforcement provision of the wpa is substantively the same as those of both the CRA and the HCRA. See MCL 15.362; MSA 17.428(2). Accordingly, for the reasons discussed above, we are also satisfied that the Legislature, by its adoption of the wpa, did not intend to establish a cause of action for a person other than the person against whom a violation of the WPA was directed. Because the alleged violation of the wpa in this case was directed at Jacob’s mother and not Jacob, we conclude that Jacob cannot maintain a cause of action against defendant under the statutory scheme established in the WPA. In sum, a court’s decision regarding whether a statute creates a private right of action must be consistent with legislative intent while furthering the Legislature’s purpose in enacting the statute. See Gardner v Wood, 429 Mich 290, 301; 414 NW2d 706 (1987). We conclude that the Legislature, by its adoption of the cra, the hcra, and the wpa did not intend to create the private right of action brought in this case by lisa Burchett, as next friend of her son Jacob. Further, because these areas of law have been so extensively addressed by the Legislature, we are not prepared to recognize a new derivative cause of action in the area of civil rights or the wpa for prenatal injuries allegedly inflicted on the child of the person whose rights were violated. Such recognition is best left to the Legislature, if it is so inclined. Accordingly, the trial court did not err in granting defendant’s motion for summary disposition with respect to Jacob’s claims. Affirmed. Sawyer, J., concurred. Neff, P.J., ([concurring in part and dissenting in part). I concur with the majority that the trial court properly granted defendant’s motion for summary disposition with respect to plaintiff’s attempt to seek redress on Jacob’s behalf under the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq. However, I would hold that plaintiff is entitled to proceed under the Civil Rights Act (CRA), MCL 37.2101 et seq.; MSA 3.548(101) et seq., and the Michigan Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq., and write separately to address the issue of derivative liability, which, because of the unique relationship between an unborn child and its mother, and the particular allegations set forth in plaintiffs complaint, is critical to the resolution of this case. Although the concept of derivative liability is not always clearly articulated, it generally refers to a claim in which the plaintiff seeks damages for a wrong done to the plaintiff that is proximately caused by a wrong done to another. Generally, the inquiry whether a claim is “derivative” focuses not on how the injury occurred but on whether the claimed damages are based on the plaintiffs own injury, or that of another. A common example of derivative liability is that of loss of consortium, which cannot exist without a prior injury to a spouse. See Berryman v Kmart Corp, 193 Mich App 88, 94; 483 NW2d 642 (1992). The alleged damages are separate and distinct from any damages to the physically injured spouse, yet they are dependent both legally and causally on the latter. Our Supreme Court has recognized that a claim for loss of consortium is derivative “but only in the sense that it does not arise at all unless the other, impaired spouse has sustained some legally cognizable harm or injury,” and treats such a claim not as an item of damages, but as a separate cause of action. Eide v Kelsey-Hayes Co, 431 Mich 26, 29; 427 NW2d 488 (1988). The facts alleged in the present case do not fit neatly into a recognized category. Unlike a loss of consortium claim, plaintiffs complaint on Jacob’s behalf does not seek compensation for damages suffered by or on account of an injury to plaintiff. Neither is Jacob a mere assignee of plaintiff’s cause of action. Rather, plaintiff in her representative capacity seeks to recover for various injuries allegedly sustained by Jacob as a result of statutory violations involved in the termination of plaintiff’s employment. Plaintiff alleges that de

BRACCO v MICHIGAN TECHNOLOGICAL UNIVERSITY Docket No. 179661. Submitted May 19, 1998, at Sault Ste. Marie. Decided September 22, 1998, at 9:00 A.M. Leave to appeal sought. Kenneth C. and Beverly Braceo, following the termination by Michigan Technological University of Kenneth Bracco’s employment, brought an action against the university in the Houghton Circuit Court, alleging age discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq.\ deprivation, without due process, of a property interest in employment; and deprivation, without due process, of a liberty interest in reputation. The Braceos also brought an action against the university in the Court of Claims, alleging that employment was supposed to be terminable only for just cause and that the discharge was not supported by just cause. The actions were consolidated. A jury returned a verdict of no cause of action with regard to the age-discrimination claim. The remaining claims were tried before the bench. The court, Edward A. Quinnell, J., determined that employment was terminable only for just cause, that just cause existed for the discharge, that Kenneth Braceo was deprived of a property interest without due process, and that Kenneth Braceo was not deprived of a protectible liberty interest. The university appealed, and the Braceos cross appealed. The Court of Appeals held: 1. In the absence of a civil service scheme providing that public employees employed for an indefinite term may be discharged only for just cause, public employers and employees may nonetheless create an employment relationship that is terminable only for just cause by express contract or agreement or through the employees’ legitimate expectations from the employer’s policies or practices. An oral contract or agreement for discharge only for just cause must be supported by evidence of negotiations about job security, by clear and unequivocal statements of job security by the employer, and by mutual assent to discharge only for just cause. A legitimate expectation of discharge only for just cause must be supported by evidence of an employer’s promise that is reasonably capable of instilling in the employee a legitimate expectation that employment would be terminated only for just cause. In this case, there was no civil service scheme providing for discharge only for just cause, the purported oral contract or agreement for discharge only for just cause was not supported by evidence of negotiations over job security, by clear and unequivocal statements of job security, or by mutual assent to discharge only for just cause, and the payment by the university of a bonus to employees who voluntarily retire early, by itself, could not give rise to a legitimate expectation of employment that was terminable only for just cause. Accordingly, Kenneth Bracco’s employment was terminable at will, not terminable only for just cause, and he did not have a protectible property interest in continued employment. The trial court therefore erred in determining that employment was terminable for just cause only and that Kenneth Bracco was deprived of a property interest without due process. 2. The trial court did not clearly err in finding that the university did not damage Kenneth Bracco’s reputation such that he was deprived of a liberty interest in reputation. Affirmed in part, reversed in part, and remanded for entry of judgment of no cause of action. 1. Master and Servant — Public Employment — Discharge Only for Just Cause. A public employer and a public employee, in the absence of a civil service scheme providing for discharge only for just cause, may create an employment relationship that is terminable only for just cause by express contract or agreement or through the employee’s legitimate expectations from the employer’s policies or practices. 2. Master and Servant — Discharge Only for Just Cause — Oral Contracts or Agreements. An oral contract or agreement for employment discharge only for just cause must be supported by negotiations over job security, by clear and unequivocal statements by the employer of job security, and by mutual assent to discharge only for just cause. 3. Master and Servant — Discharge Only for Just Cause — Legitimate Expectations. An expectation by an employee of employment discharge only for just cause must be supported by a promise by the employer that is reasonably capable of instilling in the employee a legitimate expectation that employment will be terminated only for just cause. 4. Master and Servant — Discharge Only for Just Cause — Legitimate Expectations — Early Retirement Bonuses. An employer’s payment of a bonus for early employee retirement, by itself, cannot give rise to a legitimate expectation by an employee that employment is terminable only for just cause rather than terminable at will by either party for any reason. Hunter H. Watson, for the plaintiff. Vercruysse Metz & Murray (by Robert M. Vercruysse and Bernice McReynolds), for the defendant. Before: Markman, P.J., and Griffin and Whitbeck, JJ. Whitbeck, J. In 1987, defendant Michigan Technological University (mtu) terminated the employment of plaintiff Kenneth Braceo. Plaintiffs filed suit, alleging numerous counts, but, following pretrial proceedings, were left with claims of age discrimination, breach of a just-cause employment contract, and deprivation of constitutional rights with respect to Braceo and a derivative claim for loss of consortium with respect to plaintiff Beverly Braceo. A jury heard the evidence of alleged age discrimination and returned a verdict of no cause of action in favor of mtu. The parties tried the remaining contract and constitutional claims in a bench trial. The trial court found that Braceo had a “just cause” contract of employment, but that MTU had just cause for terminating Braceo. However, the trial court also found that MTU deprived Braceo of due process, to which he was entitled by virtue of his property interest in the contract of employment, and awarded plaintiffs damages, together with costs and attorney fees. The trial court found that Braceo was not deprived of a protected liberty interest in his reputation. Mtu now appeals, and plaintiffs cross appeal. The key issue on appeal is whether Braceo had a “just cause” contract of employment with MTU. We find that he did not, and we reverse with respect to this issue. However, we affirm the trial court’s finding that Braceo was not deprived of a protected liberty interest in his reputation. I. BASIC PACTS AND PROCEDURAL HISTORY In 1970, mtu hired Bracco as a security guard. Mtu terminated Bracco in 1987 after two other employees reported that he committed a theft. These employees reported that Bracco took a few packages of packaged snacks from the display rack at the cafeteria of the student union, put the packages into his pocket, and left the area. When his supervisor confronted him with the statements of the employees, Bracco gave his own statement. Although Bracco admitted that the employees’ statements were accurate and admitted the conduct, adding that it “indeed did not look good,” he did not specifically admit theft. Bracco’s supervisor then took the statements to an administrator. The administrator and supervisor reviewed the statements with the acting employee-relations director, Pat Vitton. Although the precise facts are unclear, it appears that these three agreed that if the statements were true, mtu should terminate Bracco’s employment. They further agreed that if termination were necessary, Bracco should be given the opportunity to resign. Vitton then met with Bracco but the testimony differs with regard to what transpired. Mtu contends that Vitton confronted Bracco with the employees’ statements and asked for his explanation, while Bracco contends that Vitton merely told him he could resign or be fired. It appears undisputed that Bracco responded with an apology for his conduct but provided no explanation or defense. Vitton then told Braceo he should take time to think about the decision whether to resign. Vitton testified that when Braceo returned later that same day, he agreed to resign; Braceo did not, however, submit a written resignation. To Vitton’s astonishment, Braceo arrived at her office the next morning, asserting that he was ready to go to work. The testimony again differs, but Braceo contends that he informed Vitton that he had done nothing wrong. Underlying Bracco’s position of innocence was testimony regarding a practice that took place at mtu. Braceo testified that security guards and other uniformed officers from the area could enjoy free food at the student union after hours. Mtu, however, elicited testimony that the practice ceased years before this incident. The learned trial court succinctly summarized the procedural history as follows: Plaintiff [Braceo] filed timely suit in the Houghton County Circuit Court and in the Court of Claims, and the matters were consolidated. The cases have experienced numerous discovery proceedings, an interlocutory trip to the Court of Appeals, the retirement of one judge and the disqualification of his successor. Three theories of potential liability survived. The Elliott-Larsen Civil Rights Act [MCL 37.2101 et seq.; MSA 3.548(101) et seq.] claim (age discrimination) was tried to a Houghton County jury in March of 1992, The jury found in favor of the defendant [mtu] as to that claim. The two remaining claims are a breach of oral contract claim (Toussaint [v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980)]) in the Court of Claims and a Due Process claim (deprivation of property and deprivation of liberty) in the Houghton Circuit Court. Because of the potential relief available if a Due Process violation were found, both of these theories were presented to me sitting without a jury. The non-jury trial commenced on July 27,1992. By agreement, all evidence received during the jury trial was considered as admitted in the non-jury phase, to the extent relevant. Because of the length of time that had passed since the earlier trial and the voluminous exhibits, I directed the parties to file post-trial briefs in lieu of closing arguments, and the parties have done so. After the bench trial, the trial court issued detailed findings of fact and conclusions of law. Relying on Toussaint, the trial court concluded that “the evidence clearly and unequivocally demonstrates that plaintiff [Bracco] had a subjective expectation of job security, and that his subjective expectation was objectively reasonable and was intended by both parties.” The trial court therefore concluded that Bracco had “sustained his burden of proving that he could be discharged only for just cause.” The trial court further concluded that Bracco did not commit theft, stating that “he [Bracco] had a subjectively honest belief that he had a right to eat the food under the circumstances.” Nevertheless, the trial court went on to state: However, I also conclude that, based on the facts known to them at the time of the termination, the officials of mtu responsible for it were acting in good faith, were acting reasonably (subject to the Due Process discussion to follow), and that the perceived theft amounted to just cause for discharge under standards set by mtu. The trial court found that Bracco did not have a liberty interest in his employment, stating: The evidence is totally devoid of any conduct on the part of the university suggesting that the university did anything to create or enhance any stigma resulting from the termination of plaintiff’s employment. The termination was mentioned in a news story carried in the campus newspaper, but that occurred only in reporting the filing of the complaint; other news organizations carried a similar news story. However, the trial court went on to find that, given the existence of a “just cause” employment relationship between Braceo and MTU, “plaintiff’s [Bracco’s] entitlement is a property interest protected by the Due Process Clause, and therefore the government cannot deprive him of it without affording him appropriate due process rights.” The trial court then found that mtu denied Bracco’s “procedural Due Process protections in terminating him in the manner in which it did.” Accordingly, and after further briefing on damages, the trial court awarded the plaintiffs substantial damages and granted their motion for attorney fees, costs, and expenses. The trial court later entered a judgment in the amount of $373,395.06 against mtu. Mtu has appealed the trial court’s finding that Braceo had a just-cause contract and that mtu violated Bracco’s due process rights. Mtu has also appealed the trial court’s award of attorney fees and costs as well as the trial court’s calculation of damages. Plaintiffs cross appealed, asserting that the trial court erred in rejecting Bracco’s liberty interest claim, by reducing the amount of attorney fees awarded to plaintiffs, and by finding that mtu had just cause for terminating Braceo. H. STANDARD OF REVIEW We review a trial court’s findings of fact for clear error. “Findings of fact by the trial court may not be set aside unless clearly erroneous. In the application of this principle, regard shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it.” MCR 2.613(C). “A finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made.” In re Forfeiture of $19,250, 209 Mich App 20, 29; 530 NW2d 759 (1995). Whether those facts result in the creation of a contract is an issue of law, to be reviewed de novo. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991). When a trial court incorrectly chooses, interprets, or applies the law, it commits legal error that the appellate court is bound to correct. Fletcher v Fletcher, 447 Mich 871, 881; 526 NW2d 889 (1994) (Brickley, J., joined by Cavanagh, C.J., and Boyle, J.). m. JUST-CAUSE EMPLOYMENT A. OVERVIEW This case stands or falls on a single proposition: that Bracco had a “just cause” contract or agreement of employment with MTU. If Bracco did not have such a contract or agreement, then we need not address the questions whether MTU discharged him for just cause or whether MTU deprived him of his property interests without the process to which he was due. Nonetheless, the reasoning in Cleveland Bd of Ed v Loudermill, 470 US 532; 105 S Ct 1487; 84 L Ed 2d 494 (1985), is—even though it is a due process case dealing with the property rights of public employees in their continued employment—particularly instructive. Loudermill recognizes one situation where a public employee is a “just cause” employee: when that employee is covered by a civil service scheme in which the governing law provides that such employees can be terminated only for cause. While we may have such schemes in Michigan, it is clear that Braceo is not covered by one. The threshold question is, therefore, whether in the absence of a civil service scheme in which the governing law provides that public employees may be terminated only for cause, public employers and public employees may create a just-cause employment relationship. In Engquist v Livingston Co, 139 Mich App 280, 285; 361 NW2d 794 (1984), citing Bd of Regents of State Colleges v Roth, 408 US 564; 92 S Ct 2701; 33 L Ed 2d 548 (1972), and Perry v Sindermann, 408 US 593; 92 S Ct 2694; 33 L Ed 2d 570 (1972), this Court held: A property right emanates from a contract or statute; public employment in and of itself is not a property interest automatically entitling an employee to procedural due process. [Emphasis supplied.] See also Johnson v Menominee, 173 Mich App 690, 695-696; 434 NW2d 211 (1988). In Meagher v Wayne State Univ, 222 Mich App 700, 720-721; 565 NW2d 401 (1997), this Court fleshed this issue out definitively when we said: A property right may come from contract or statute, but a public employee does not have a property right in continued employment when the position is held at the will of the employee’s superiors and the employee has not been promised termination only for just cause. Manning v Hazel Park, 202 Mich App 685, 694; 509 NW2d 874 (1993). A public employee may show a just-cause contract under ordinary contract principles (e.g., that an express agreement, oral or written, exists for just-cause employment) or under the “legitimate expectations” theory of Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980). See Manning [v Hazel Park, 202 Mich App 685; 509 NW2d 874 (1993)] and Thorin v Bloomfield Hills Bd of Ed, 203 Mich App 692; 513 NW2d 230 (1994). The latter theory, in its pure form, stemmed from the Supreme Court’s common-law authority to recognize enforceable obligations that arise outside the operation of normal contract principles. Rood v General Dynamics Corp, 444 Mich 107, 118; 507 NW2d 591 (1993). Liability is nevertheless still premised on the parties’ mutual assent to be bound. Parties are free to bind themselves to whatever termination provisions they wish. Thomas v John Deere Corp, 205 Mich App 91; 517 NW2d 265 (1994). However, the “implied contract” theory of Toussaint may not be relied upon in Michigan when there is an express contract covering the same subject matter. Scholz v Montgomery Ward & Co, Inc, 437 Mich 83, 93; 468 NW2d 845 (1991); Wallace v Recorder’s Court, 207 Mich App 443, 447; 525 NW2d 481 (1994). [Emphasis supplied.] Thus, although the Michigan Supreme Court has not spoken definitively on this subject, in this Court at least, it is clear that in the absence of a civil service scheme in which the governing law provides that public employees may be terminated only for cause, public employers and public employees may nonetheless create a just-cause employment relationship. Further, in this Court at least, it is also clear that public employers and public employees may create such relationships by ordinary contractual means (i.e., through an express contract or agreement that is either oral or written) or through the “legitimate expectations” theory of Toussaint (i.e., outside “normal” contractual means). B. TOUSSAINT AND ITS LIMITATIONS (1) THE FACTUAL BACKGROUND IN TOUSSAINT As stated by Justice Levin, writing for the majority in Toussaint: Charles Toussaint was employed in a middle management position with Blue Cross and Walter Ebling was similarly employed by Masco. After being employed five and two years, respectively, each was discharged. They commenced actions against their former employers, claiming that the discharges violated their employment agreements which permitted discharge only for cause. A verdict of $72,835.52 was rendered for Toussaint and a verdict of $300,000 for Ebling whose discharge left him ineligible to exercise a stock option. Different panels of the Court of Appeals reversed Toussaint and affirmed Ebling. These cases are not factually distinguishable. Both Toussaint and Ebling inquired regarding job security when they were hired. Toussaint testified that he was told he would be with the company “as long as I did my job”. Ebling testified that he was told that if he was “doing the job” he would not be discharged. Toussaint’s testimony, like Ebling’s, made submissible to the jury whether there was an agreement for a contract of employment terminable only for cause. Toussaint’s case is, if anything, stronger because he was handed a manual of Blue Cross personnel policies which reinforced the oral assurance of job security. It stated that the disciplinary procedures applied to all Blue Cross employees who had completed their probationary period and that it was the “policy” of the company to release employees “for just cause only”. [Toussaint, supra at 595, 597-598.] (2) THE CONTRA

JOHNNY E. BREWER, Plaintiff v. CABARRUS PLASTICS, INC., Defendant No. COA97-200 (Filed 15 September 1998) 1. Employer and Employee— racial discrimination — prima facie case — directed verdict — improper The trial court’s grant of defendant’s directed verdict motion in an employment discrimination action was improper where plaintiff had alleged racial discrimination under 42 U.S.C. § 1981 and established a prima facie case of discrimination. Bearing in mind that plaintiff’s burden in establishing a prima facie case is not an onerous one and that the trial court must examine the evidence in the light most favorable to the nonmoving party on a motion for directed verdict, plaintiff’s evidence on qualifications was sufficient. Directed verdict for defendant would have been appropriate only if defendant conclusively satisfied as a matter of law its burden of producing evidence of legitimate nondiscriminatory reasons for plaintiff’s discipline and termination; viewing the evidence in the light most favorable to plaintiff, a genuine issue of fact existed as to whether plaintiff actually accumulated three “written” warnings as defendant claimed. 2. Employer and Employee— retaliatory discharge — racial discrimination complaint — directed verdict Directed verdict was improperly granted for defendant on a retaliatory discharge claim arising from a racial discrimination complaint where defendant challenged only the third element of retaliatory discharge, causal connection, but plaintiff presented more than a scintilla of evidence. Although defendant contended that the lapse of time between the filing of the first EEOC charge and plaintiff’s termination obviated any causal connection, plaintiff’s proper reliance on evidence of the sequence of events raises a factual issue sufficient to preclude grant of a directed verdict. Appeal by plaintiff from judgment entered 28 May 1996 by Judge James C. Davis in Cabarrus County Superior Court. Heard in the Court of Appeals 8 October 1997. Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, P.A., by John Gresham, and Sharpe & Fosbinder, P.A., by Julie H. Fosbinder, for plaintiff-appellant. Robinson, Bradshaw & Hinson, PA., by Richard A. Vinroot and Frank H. Lancaster, for defendant-appellee. JOHN, Judge. Plaintiff appeals the trial court’s grant of defendant’s directed verdict motion on plaintiff’s claims of racial discrimination and retaliatory discharge. Plaintiff also contends the trial court erred by (1) excluding certain portions of his testimony and that of other witnesses, (2) admitting irrelevant and highly prejudicial evidence, and (3) precluding during jury voir dire “questions reasonably designed to explore jurors’ potential racial bias and bias toward racial discrimination claims.” For the reasons set forth below, we award plaintiff a new trial. Evidence presented at trial included the following: Plaintiff, an African-American male, began work for defendant Cabarrus Plastics, Inc. (CPI) in April 1989 as a machine operator. CPI manufactures molded plastic parts. In October 1989, plaintiff transferred to the position of material handler and received an increase in pay. His duties included filling machines with plastic pellets, collecting materials from machines that had completed a particular job, cleaning machines, assembling boxes for finished parts, and substituting for other machine operators during their breaks. During plaintiff’s first one and one-half years of employment, it appeared to him that white employees were receiving overtime opportunities denied to him and that his wage increases lagged behind those of white employees. In addition, a junior white employee was promoted over plaintiff to the position of set-up technician. Plaintiff recalled that plant manager Russell Hayes said to him during this period, “Johnny Brewer, what are you doing — what the hell you think you’re doing, boy?” Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in November 1990, alleging wrongful denial of promotion, wage increases and overtime based on his race. The first two allegations were resolved against plaintiff. The EEOC determined plaintiff “was not as qualified as the selectee” for promotion and that CPI “properly followed” its promotion and wages practice. However, the EEOC found plaintiff had been denied overtime because of his race and pursued a lawsuit on his behalf. CPI paid plaintiff $200.00 to settle the suit. According to plaintiff, a few weeks after filing his complaint with EEOC, David Brewer (Brewer), a white supervisor, called plaintiff into Brewer’s office on more than one occasion. During those discussions, Brewer attempted to dissuade plaintiff from pursuing the racial discrimination allegation. William Cook (Cook), also a supervisor at CPI, testified Brewer remarked that the plaintiff “[d]idn’t get what he wanted so he’s trying to make a little trouble.” Cook also testified Brewer used the pejorative term “n — ” in his presence, including the protestation, “I ain’t kin to no damn n — ,” when another employee jokingly suggested Brewer and plaintiff were related. Former CPI employee Trina Emrich Wright (Wright) stated that Brewer asserted on more than one occasion “it was a shame that a ‘N’ had to have the same last name as him.” Plaintiff testified a number of changes occurred in his work environment following his EEOC complaint and that his “job got harder” after he made the claim. For example, prior to the charge, plaintiff had been working five or six machines. After the charge, plaintiffs supervisor regularly scheduled him to work eight or nine machines, more than the similarly placed employee on either the preceding or succeeding shifts. Further, plaintiff’s obligation to substitute for machine operators during, their break times also increased, consuming up to three hours of his work day. Wright, plaintiff’s co-worker who was employed by CPI from 1989 through 1992, indicated that after plaintiff filed his charge of discrimination, “he had an extra workload” which “doubled the load in all aspects.” CPI, on the other hand, maintained that plaintiff’s work performance deteriorated during his final year of employment. Plaintiff received three warnings that year and as a result, was terminated pursuant to CPI’s “three strikes” procedure. CPI maintained a two-tier disciplinary policy under which certain offenses might result in immediate termination, while accumulation of three written warnings for certain other offenses also mandated termination. As CPI’s employee handbook stated: Receipt of three written warnings from either section [describing offenses], in any categories, within the same twelve month period will result in discharge. On 17 July 1991, plaintiff was warned for “not doing his job properly” after letting a press run out of material. In documenting the incident, Brewer wrote, under the heading “Action Taken,” “[a]ny other negligence in this matter will result in disciplinary action.” After plaintiff allowed another press to run out of material, a second warning was issued 4 February 1992 for “willful failure to perform work assigned.” Brewer memorialized the action taken on this occasion as a “written warning.” Finally, plaintiff received a “written warning” on 17 March 1992 for “not wearing safety glasses in designated area.” Plaintiff disputed the legitimacy of the three warnings that led to his termination. With respect to the first occurrence, plaintiff explained that the automatic feeder was broken and he was unable to ascertain that material was not being drawn up into the machine. More significantly, however, while acknowledging the warning had been placed into his record in written form, plaintiff testified it was company practice to write down verbal warnings to place in the reprimanded employee’s file. Plaintiff emphasized that the first incident was not classified as being a “written warning,” which designation had been recited in reports of the second and third occurrences. In addition, he offered into evidence other employee records containing written “verbal warnings.” Regarding the second and third warnings, plaintiff asserted they likewise were unwarranted and that he was treated differently from white employees with respect to the issuance of warnings. In any event, plaintiff was terminated the day following receipt of the third warning, and he was replaced by a white employee. Plaintiff thereafter filed a second EEOC complaint, alleging the termination was in retaliation for his first EEOC charge. The EEOC determined that: Examination of the evidence indicates [plaintiff] was discharged because he received three written disciplinary actions within a twelve month period. There was no evidence to show that [CPI] discharged [plaintiff] in retaliation for filing a previous charge of discrimination against [CPI]. Plaintiff filed the instant complaint 31 March 1995, alleging violation of 42 U.S.C. § 1981 (1994 & Supp. 1998) (§ 1981) and wrongful discharge based on the public policy expressed in the Equal Employment Practices Act, N.C.G.S. § 143-422.1 (1996). CPI’s motion for summary judgment was denied 6 November 1995. At the close of plaintiffs evidence during trial before a jury, CPI moved for directed verdict pursuant to N.C.G.S. § 1A-1, Rule 50 (Supp. 1997) (Rule 50). The motion was granted in an “Order and Judgment” entered 28 May 1996, both as to plaintiffs claim of violation of § 1981 and his wrongful discharge and discipline claim. Plaintiff filed timely notice of appeal. Our Supreme Court has written that [a] motion for directed verdict tests the sufficiency of the evidence to take the case to the jury. In making its determination of whether to grant the motion, the trial court must examine all of the evidence in a light most favorable to the nonmoving party, and the nonmoving party must be given the benefit of all reasonable inferences that may be drawn from that evidence. If, after undertaking such an analysis of the evidence, the trial judge finds that there is evidence to support each element of the nonmoving party’s cause of action, then the motion for directed verdict . . . should be denied. Abels v. Renfro Corp., 335 N.C. 209, 214-15, 436 S.E.2d 822, 825 (1993), disc. review denied, 347 N.C. 263, 493 S.E.2d 450 (1997) (citations omitted). If more than a scintilla of evidence supports each element of the non-movant’s claim, the directed verdict motion should be denied. Ace Chemical Corporation v. DSI Transports, Inc., 115 N.C. App. 237, 242, 446 S.E.2d 100, 103 (1994). Finally, a directed verdict should not be granted when conflicting evidence has been presented on contested issues of fact. Id. Plaintiff alleged CPI violated § 1981 because it “discriminated against [him] on the basis of race and retaliation for filing a complaint of discrimination.” In pertinent part, § 1981 provides all persons .... [shall have the] same right in every State and Territory to make or enforce contracts . . . and to the full and equal benefits of all laws and proceedings for the security of persons and property as is enjoyed by white citizens .... The Civil Rights Act of 1991, 42 U.S.C. § 1981 (1994 & Supp. 1998) broadened the scope of § 1981 “to include essentially all forms of racial discrimination in employment.” Percell v. International Business Machines, Inc., 785 F. Supp. 1229, 1231 (E.D.N.C. 1992), aff’d, 23 F.3d 402 (4th Cir. 1994). Therefore, § 1981 encompasses plaintiff’s claims for wrongful termination and wrongful discipline. See Williams v. Carrier Corp., 889 F. Supp. 1528, 1530-31 (M.D. Ga. 1995), aff’d, 130 F.3d 444 (11th Cir. 1997) (plaintiff may establish prima facie case of racially biased discipline under § 1981 by showing he or she did not violate work rule or that he or she engaged in conduct similar to individual outside protected group who was disciplined less severely). Plaintiffs retaliation claim is likewise actionable under § 1981. See Skeeter v. City of Norfolk, 681 F. Supp. 1149, 1154 (E.D. Va. 1987), aff’d 898 F.2d 147 (4th. Cir. 1990), cert. denied, 498 U.S. 838, 112 L. Ed. 2d 81 (1990) (retaliatory discharge actionable under § 1981). The models and standards developed in jurisprudence under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1994 & Supp. 1997) (Title VII) also apply to claims under § 1981. Patterson v. McLean Credit Union, 491 U.S. 164, 181-82, 105 L. Ed. 2d 132, 153 (1989), aff’d 39 F.3d 515 (4th Cir. 1994). The ultimate purpose of both Title VII and G.S. § 143-422.2 is to eliminate “discriminatory practices in employment.” North Carolina Department of Correction v. Gibson, 308 N.C. 131, 141, 301 S.E.2d 78, 85 (1983). In analyzing state claims, our Supreme Court has adopted the evidentiary standards and principles developed under Title VII. Id. Two primary models have developed: (1) the circumstantial evidence model, see McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 677-78 (1973), aff’d 528 F.2d 1102 (8th Cir. 1976) (under circumstantial evidence model as applied to discriminatory discharge claim, plaintiff must establish prima facie case by showing a) he was member of protected class, b) was terminated, c) was qualified to perform assigned job duties, and d) was replaced by a member of non-protected class or treated more harshly than similarly situated non-protected employees), and (2) the direct evidence model, see McCarthy v. Kemper Life Insurance Company, 924 F.2d 683, 686 (7th Cir. 1991) (direct evidence, such as racially derogatory comments, is proof of discriminatory motive on part of employer). In a racial discrimination case, our Supreme Court has set forth the standards as follows: (1) The claimant carries the initial burden of establishing a prima facie case of discrimination. (2) The burden shifts to the employer to articulate some legitimate nondiscriminatory reason for the applicant’s rejection. (3) If a legitimate nondiscriminatory reason for rejection has been articulated, the claimant has the opportunity to show that the stated reason for rejection was, in fact, a pretext for discrimination. Gibson, 308 N.C. at 137, 301 S.E.2d at 82. “The burden of establishing & prima facie case of discrimination is not onerous,” and may be accomplished by a variety of means, id. at 137, 301 S.E.2d at 83, including showing (1) a claimant is a member of a minority group, (2) he was qualified for the position, (3) he was discharged, and (4) the employer replaced him with a person who was not a member of a minority group. Id. Alternatively, a claimant may show discharge of a black employee and retention of a white employee under apparently similar circumstances. Id. Establishment of a prima facie case gives rise to a presumption that “the employer unlawfully discriminated against the employee.” Id. at 138, 301 S.E.2d at 83. The employer then has the “burden of producing evidence to rebut the presumption of discrimination.” Id. The employer’s burden of production is satisfied “if he simply explains what he has done or produces evidence of legitimate nondiscriminatory reasons.” Id. Upon production by the employer of an “explanation . . . legally sufficient to support a judgment” in its favor, “the [employee] is then given the opportunity to show that the employer’s stated reasons are in fact a pretext for intentional discrimination.” Id. at 139, 301 S.E.2d at 83-84. In doing so, the employee may rely on evidence offered to establish a prima facie case “to carry his burden of proving pretext.” Id. In the case sub judice, we believe plaintiff met his burden of establishing aprima facie case of discrimination, thereby precluding the grant of defendant’s directed verdict motion on grounds he failed to do so. See Ace Chemical Corporation, 115 N.C. App. at 242, 446 S.E.2d at 103 (if more than scintilla of evidence supports each element of non-movant’s claim, motion should be denied). Defendant does not dispute that plaintiff presented evidence satisfying three of the four elements recited in Gibson: plaintiff was an African-American discharged from his position at CPI and replaced by a white worker. See Gibson, 308 N.C. at 137, 301 S.E.2d at 82-83. CPI contends, however, that plaintiff failed to present prima facie evidence of his qualification for the position. See Hughes v. Bedsole, 48 F.3d 1376, 1383 (4th Cir. 1995), cert. denied, 516 U.S. 870, 133 L. Ed. 2d 126 (1995) (“[plaintiff] must. . . eliminate concerns that she was fired because of her performance or qualifications, two of the most common nondiscriminatory reasons for any adverse employment decision”). Bearing in mind that plaintiffs burden in establishing a prima facie case was “not an onerous one,” see Gibson, 308 N.C. at 137, 301 S.E.2d at 82, and that on a motion for directed verdict the trial court must examine the evidence in the light most favorable to the nonmoving party, Abels, 335 N.C. at 214-15, 436 S.E.2d at 825, we conclude plaintiffs evidence on the qualifications prong of Gibson was sufficient to withstand defendant’s motion. Plaintiff presented evidence he was hired 3 April 1989 at a pay rate of $6.50 per hour and terminated 17 March 1992 when he was receiving $8 per hour. He received merit pay increases while employed at CPI. See Gomez v. Trustees of Harvard University, 677 F. Supp. 23, 25 (D.D.C. 1988) (plaintiff’s burden in making out prima facie case is “de minimis,” and salary increases are indicative of qualification). Plaintiffs evidence also included positive performance evaluations and a relative lack of disciplinary actions prior to filing the EEOC complaint. Finally, plaintiff performed additional duties following his initial EEOC complaint. We believe this evidence, viewed in the light most favorable to plaintiff, is sufficient to indicate plaintiff’s qualifications for the job. At a minimum, plaintiff presented the necessary “scintilla of evidence” supporting the element of qualification for his position. See Ace Chemical Corporation, 115 N.C. App. at 242, 446 S.E.2d at 103. In response, CPI points to the three warnings received by plaintiff, insisting they reveal inadequate work performance and consequent lack of qualification for promotion. We cannot say this evidence overcame plaintiff’s prima facie case as a matter of law so as to justify verdict being directed in favor of CPI. See Abels, 335 N.C. at 214-15, 436 S.E.2d at 825 (nonmoving party must be given benefit of all reasonable inferences that may be drawn). CPI cites Karpel v. Inova Health System Services, 134 F.3d 1222 (4th Cir. 1998) as supporting its contention plaintiff failed to present sufficient evidence of satisfactory job performance. We disagree. In affirming summary judgment for the defendant-employer, the Fourth Circuit in Karpel noted the record therein “clearly demonstrate^] that [plaintiff’s] job performance was unsatisfactory.” Karpel, 134 F.3d at 1128. The plaintiff-employee had been repeatedly tardy, accumulated multiple inadequate performance reviews, and failed to complete required monthly summaries. Id. By contrast, the record in the case sub judice does not “clearly” demonstrate plaintiffs lack of qualifications for the job. For example, we note plaintiff disputed the warnings, testified they resulted in part from his increased workload, and asserted the first warning was “verbal” as opposed to “written.” Wright corroborated the testimony regarding plaintiffs increased workload. A directed verdict is not proper when there is conflicting evidence on contested issues of fact. Ace Chemical Corporation, 115 N.C. App. at 244, 446 S.E.2d at 104. CPI also relies on McCarthy, 924 F.2d 683. CPI accurately relates that plaintiff in McCarthy, like plaintiff herein, filed suit against his employer alleging racial discrimination and retaliation in violation of Title VII and § 1981. Id. at 685. McCarthy had filed an EEOC charge and was subsequently discharge

BUCHANAN v CITY COUNCIL OF FLINT Docket No. 193153. Submitted May 5, 1998, at Grand Rapids. Decided September 11, 1998, at 9:10 A.M. Leave to appeal sought. Darryl Buchanan brought an action in the Genesee Circuit Court against the City Council of Flint. When two female employees filed complaints alleging sexual harassment by the plaintiff, Flint’s ombudsman, the city attorney’s office undertook an investigation. A panel reviewed the investigation undertaken by an assistant city attorney and forwarded to the city council for its independent review and action a recommendation for remedial and disciplinary action. The city council placed the plaintiff on administrative leave with pay pending the outcome of an investigation of a special counsel that it had appointed. The plaintiff then filed his complaint, alleging disparate treatment, false light defamation, and intentional infliction of emotional distress and seeking judicial review, injunctive relief, and damages. The court, Donald R. Freeman, J., revoked the administrative leave and ordered that the plaintiff be reinstated as ombudsman, finding that the city charter made no provision for a suspension of or imposing administrative leave on the ombudsman, but held that the city’s policy regarding harassment and discrimination applied to the ombudsman and that the city council could conduct an investigation of those charges levied against the plaintiff. The city council conducted an impeachment hearing, hearing the testimony of numerous witnesses, and, thereafter, determined that the plaintiff should be removed as ombudsman, holding specifically that the plaintiff had wilfully caused citizens’ complaints not to be worked on, had permitted a conflict of interest in a specified case, had created a difficult work environment through erratic personnel policies, had delegated personnel matters to an advisory board and to consultants, and had failed to train and supervise staff appropriately. The plaintiff amended his complaint in the circuit court, challenging the city council’s removal of him from office. The parties agreed that the proper standard of review by the court was review de novo, but agreed that the court did not have to review all the testimony presented before the city council and rather could render its decision on the basis of an extract of the testimony that would be supplied by the parties. Following its review, the court set aside the city council’s decision and ordered the plaintiff reinstated. The city council moved for reconsideration, asking the court to review the entire record of the hearing before the city council. The court agreed to review the entire record and, following its review of that record, denied the motion for reconsideration. The city council appealed by leave granted. The Court of Appeals held: 1. The city council argues that the standard of review that the court should have used is the substantial evidence standard found in Const 1963, art 6, § 28, rather than the review de novo standard contained in Flint Charter, § 1-603(C), because the standard set forth in the constitution takes precedence over the standard set forth in the city charter. The court properly used the review de novo standard of review required by the city charter, because the substantial evidence standard of art 6, § 28 sets forth the minimum standard that must be observed for judicial review of an administrative determination, but does not preclude the setting of a stricter standard of review. Here the city charter sets a stricter standard of review for judicial review of the city council’s decisions, review de novo, and the court properly used that stricter standard in reviewing the decision of the city council. 2. The court erred in finding that there was insufficient evidence to support the decision of the city council to remove the plaintiff. The city charter provides for-removal of an appointee “for good cause.” Under either the substantial evidence standard or the review de novo standard, there was clearly sufficient evidence to support the city council’s finding that the plaintiff purposefully delayed the investigation of citizens’ complaints to apply pressure on the city council to secure more funding for the ombudsman’s office, and the court’s finding that there was not sufficient evidence to support that finding of the city council was clearly erroneous. Because the plaintiff’s actions in this regard controverted the essential mission of the ombudsman’s office, sufficient cause for the plaintiff’s removal from office was shown, and the court erred in setting aside the city council's decision to remove the plaintiff from office. 3. Because the only matter at issue in these proceedings was the review of the propriety of the city council’s decision to remove the plaintiff torn office, the court did not err as a matter of law in its determination not to make findings of fact concerning the questions whether the plaintiff discriminated or retaliated against employees or whether the plaintiff had a claim for wrongful discharge. 4. The court did not err in denying the city council’s motion to disqualify the plaintiff’s attorney because of alleged conflicts of interests. The court’s finding that there was no continuing attorney-client relationship between the city council and the plaintiff’s attorney or between the ombudsman’s office and that attorney was not clearly erroneous. Reversed in part and affirmed in part. Administrative Law — Findings op Fact — Judicial Review — Standard op Review. The substantial evidence standard set forth in the state constitution for judicial review of the findings of fact of an administrative agency sets a minimum standard of judicial review but does not preclude the adoption of a stricter standard of review, such as review de novo (Const 1963, art 6, § 28). George R. Hamo, for the plaintiff. Patrick L. Rose, for the defendant. Amicus Curiae: Vamum, Riddering, Schmidt & Howlett (by Peter Armstrong and George B. Davis'), for the Michigan Municipal League. Before: Sawyer, P.J., and Kelly and Smolensk, JJ. Kelly, J. Defendant, the City Council of Flint appeals by leave granted from the February 20, 1996, order of the Genesee Circuit Court that set aside the city council’s decision to remove plaintiff, Darryl Buchanan, from the office of ombudsman and reinstated him to the position. The city council also appeals from the June 10, 1996, order that reiterated plaintiff’s reinstatement as ombudsman and denied the city council’s motion to disqualify his attorney. By order of this Court, plaintiff was not permitted to return to his position as ombudsman during the pendency of this appeal. We reverse in part and affirm in part. Plaintiff, who had been with the ombudsman’s office for approximately fourteen years, starting as an investigative trainee and working his way up to assistant ombudsman and director of investigations, was appointed ombudsman by the city council on August 17, 1994. Almost immediately, problems began. In January of 1995, Deborah Milling, plaintiff’s former girlfriend and an employee of the ombudsman’s office, filed a sexual harassment and gender discrimination complaint with the Michigan Department of Civil Rights. In April of 1995, she filed a complaint against plaintiff with the Flint city attorney’s office, alleging sexual harassment. In May of 1995, Rose Fizer, another employee of the ombudsman’s office, also filed a sexual harassment complaint against plaintiff with the city attorney’s office. The city’s policy statement relative to harassment and discrimination requires an independent investigation of complaints. Therefore, the complaints were investigated by an assistant city attorney who took statements from all the employees of the ombudsman’s office regarding the allegations against plaintiff. Thereafter a panel was formed to conduct a review of the investigation. On June 26, 1995, the panel issued its decision finding that plaintiff had violated the city’s policy on harassment and discrimination. Because the city charter provides that only the city council has authority over the office of the ombudsman, the panel forwarded its recommendation for remedial and disciplinary action to the city council for independent review and action. The city council appointed Charles Forrest, a former city attorney, as special counsel to investigate whether there was evidence of official misconduct that would justify removal of plaintiff from office. The city council placed plaintiff on administrative leave with pay pending the outcome of the investigation. Thereafter, plaintiff retained attorney George Hamo and filed a complaint in the Genesee Circuit Court against the city council, alleging disparate treatment, false light defamation, and intentional infliction of emotional distress and requesting judicial review, injunctive relief, and damages. Following a hearing on July 11, 1995, the trial court, after interpreting the city charter to contain no provision for the suspension of or the imposition of administrative leave on the ombudsman, revoked the administrative leave imposed by the city council and ordered plaintiff reinstated as ombudsman. However, the trial court found that the city’s policy regarding harassment and discrimination applied to the ombudsman, and, therefore, the city council could conduct an investigation of those charges levied against plaintiff. An impeachment hearing commenced before the city council on August 23, 1995. After five days of hearings and numerous witnesses, the city council determined that plaintiff should be removed as ombudsman, finding five different specific acts by plaintiff that were cause for his removal. The specific cause for removal was set forth in the August 28, 1995, city council resolution as follows: Be it further resolved, that the specific cause for removal is that the testimony indicates that the Ombudsman did wilfully cause complaints not be worked on or to be backed up for budgetary purposes; permitted a conflict of interest in the Steverson Davis case; created a difficult work environment through erratic personnel policies; delegated personnel matters to the Ombudsman’s Advisory Board and to consultants; and failed to train and supervise staff appropriately. On August 30, 1995, plaintiff filed an amended complaint in the circuit court, challenging the city council’s vote to remove him from office. Subsequently, a hearing was held concerning the matter. At the hearing, the parties agreed that, on the basis of the requirements of the city charter, review de novo was the appropriate standard of review to be used to evaluate the city council’s removal of plaintiff. The parties also agreed that the trial court need not review all the testimony presented before the city council and that the parties would provide the court with the testimony necessary to render its opinion. At the conclusion of the hearing, the trial court determined that the city council was without cause to remove plaintiff from his position as ombudsman. By order entered on February 20, 1996, the trial court set aside the city council’s decision to remove plaintiff from the office of ombudsman and reinstated him to that position. A motion for reconsideration followed. At the March 21, 1996, hearing regarding city council’s motion for reconsideration, the city attorney requested that the trial court review the entire record of the hearing before the city council. The circuit court agreed to do so and spent the next few days listening to the testimony presented before the city council. After reviewing the entire record, the trial court denied the city council’s motion for reconsideration, and this appeal followed. Subsequently, this Court ordered that plaintiff could not return to office during the pendency of this appeal or until further order of this Court. i On appeal, the city council first argues that the circuit court erred in applying a review de novo standard of review with regard to the city council’s decision to remove plaintiff from the office of the ombudsman. The city council claims that the circuit court should have applied the “substantial evidence” standard of review. The city council also argues that the circuit court erred in finding that “cause” for plaintiff’s removal was lacking. We hold that under either a review de novo standard or a substantial evidence standard, there was sufficient evidence to support the city council's action. Const 1963, art 6, § 28 provides that a judicial review should determine whether an administrative ruling was supported by competent, material, and substantial evidence on the whole record. Birmingham School Dist v Buck (On Remand), 211 Mich App 523, 525; 536 NW2d 297 (1995). In In re Payne, 444 Mich 679, 692-693; 514 NW2d 121 (1994), our Supreme Court stated, in pertinent part: When reviewing the decision of an administrative agency for substantial evidence, a court should accept the agency’s findings of fact if they are supported by that quantum of evidence. A court will not set aside findings merely because alternative findings also could have been supported by substantial evidence on the record. “Substantial evidence” has a classic definition: the amount of evidence that a reasonable mind would accept as sufficient to support a conclusion. While it consists of more than a scintilla of evidence, it may be substantially less than a preponderance. . . . [T]he substantial evidence standard found in Const 1963, art 6, § 28, does not depart from this definition, at least according to its drafters. [Citations omitted.] The city council claims that Payne is controlling and that the “substantial evidence” standard should have been the standard of review used by the circuit court. However, according to the comments made at the Constitutional Convention in 1961, in reference to Const 1963, art 6, § 28, the provision was intended only to ensure “ ‘minimum rights so far as appeals are concerned,’ ” In re Payne, supra at 692-693, n 9, quoting 1 Official Record, Constitutional Convention 1961, p 1467 (emphasis supplied), and a more rigorous standard is required by the Flint city charter. Flint Charter, § 1-603 provides for removal of an elected or appointed city employee for cause. Subsection C provides in pertinent part: Decisions made by the city council under this section are not reviewable by the mayor but are subject to judicial review in a hearing de novo. [Emphasis supplied.] Const 1963, art 6, § 28 requires the substantial evidence standard “as a minimum.” By carefully providing for “minimum” standards, it is clear the drafters did not preclude an administrative agency from requiring a stricter standard of review. In this case, the city charter clearly provides for review de novo and both sides requested review de novo before the circuit court. We believe that the Michigan Constitution clearly gives the city freedom to impose a stricter standard of review and to require review de novo of a decision to remove the ombudsman. Therefore, when the circuit court reviewed de novo the city council decision, it was not violating the Michigan Constitution. The Flint charter established the standard of review required in these proceedings, and the circuit court merely followed the requirements set forth in the city charter. In any event, under either standard of review we find sufficient evidence to support the city council's decision to remove Buchanan from office. n Flint Charter, § 1-603 provides that the “city council shall declare the forfeiture of the office of any elective officer or appointee and may remove for cause any person appointed to an office for a fixed term.” Flint Charter, § 3-502(B) provides that the ombudsman may be removed for cause by three-fourths of the city council members elect. Black’s Law Dictionary (6th ed), p 221 defines “cause” “[a]s a reason for an action.” In a similar vein, we note that this Court has recently indicated that “good cause” generally means “ ‘a substantial reason amounting in law to a legal excuse for failing to perform an act required by law.’ ” Franchise Management Unlimited, Inc v America’s Favorite Chicken, 221 Mich App 239, 246; 561 NW2d 123 (1997), quoting Black’s Law Dictionary (6th ed), p 692. In this case, in its resolution adopted August 28, 1995, the city council gave the following reasons for the removal of the ombudsman: Now be it resolved, that based on the testimony and the evidence presented during the hearings, that the Ombudsman, Darryl Buchanan, be removed for cause: Be it further resolved, that the specific cause for removal is that the testimony indicates that the Ombudsman did wilfully cause complaints not be worked on or to be backed up for budgetary purposes; permitted a conflict of interest in the Steverson Davis personnel policies; delegated personnel matters to the Ombudsman’s Advisory Board and to consultants; and failed to train and supervise staff appropriately.[] After conducting its review, the trial court found insufficient evidence to support the stated reasons for Buchanan’s removal. We review the trial court’s factual findings for clear error, which occurs if an appellate court is left with a firm and definite conviction that a mistake has been made. MCR 2.613(C); Ghidotti v Barber (On Remand), 222 Mich App 373, 377; 564 NW2d 141 (1997). We have such a conviction. Even were we to agree with the trial court that there was scant evidence supporting other stated reasons for removal, the evidence, through the testimony of senior investigator Joseph Valu and investigators Barbara Burdette and Ramona Sain, did clearly establish that plaintiff purposefully delayed the assignment and investigation of citizen complaints to apply pressure upon the city council to secure more funding for the ombudsman’s office. The trial court’s finding that there was insufficient evidence to support this stated reason for removal was clearly erroneous. Plaintiff’s actions in this regard controverted the essential mission of the office, which was to investigate and resolve citizen complaints, and, in our opinion, constituted cause for his removal. Because we find that there was sufficient cause for his removal, we believe the circuit court erred in setting aside the city council’s decision to remove plaintiff from office. Having found that the trial court erred in setting aside the city council’s decision to remove plaintiff from office, we need only briefly address some of the other issues raised by the city council. The circuit court did not err as a matter of law in its determination not to make findings of fact concerning the questions whether plaintiff discriminated or retaliated against employees Debra Milling and Rose Fizer or whether plaintiff had a claim for wrongful discharge. The only matter before the circuit court was a review of the decision of the city council to remove plaintiff from his position as the ombudsman. The circuit court was acting in the role of an appellate court for this hearing. Its task was to determine whether the stated reasons for plaintiffs removal constituted sufficient cause based on the evidence before the council. The city council did not state that discrimination or retaliation was a reason for plaintiffs removal as ombudsman, and Milling’s and Fizer’s claims of sexual harassment, sexual discrimination, retaliation and so on are the subject of separate pending circuit court actions. Moreover, in his amended complaint, plaintiff did not state a claim for wrongful discharge. Hence, the claims of wrongful discharge, sexual discrimination, or retaliation were not before the circuit court, and, therefore, the court did not err in its determination that it would not make findings of fact regarding these issues. Lastly, we do not believe that the trial court erred in denying the city council’s motion to disqualify plaintiff’s attorney, George Hamo, on the ground that by Hamo’s

Commissioner of the Department of Employment and Training & another vs. Janet Rowe Dugan. Suffolk. May 4, 1998. August 5, 1998. Present (Sitting at Pittsfield): Wilkins, C.J., Abrams, Greaney, Fried, Marshall, & Ireland, JJ. Employment Security, Misconduct by employee, Eligibility for benefits. Collateral Estoppel. Judgment, Preclusive effect. Clerk of Court. The factual findings of a hearing officer in a disciplinary proceeding of the Committee on Professional Responsibility for Clerks of Courts, which were adopted by the committee and by the Supreme Judicial Court and resulted in an order of that court removing a clerk-magistrate from her position for wilful misconduct prejudicial to the administration of justice, precluded the clerk-magistrate from contesting that she had committed misconduct in wilful disregard of her employer’s interest in a subsequent proceeding before the Department of Employment and Training to determine her eligibility for unemployment compensation benefits. [141-146] Civil action commenced in the Boston Municipal Court Department on February 7, 1996. The case was heard by Sally A. Kelly, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Mary E. Murphy-Hensley, Assistant Attorney General, for the plaintiffs. Andrew Kisseloff for the defendant. Administrative Office of the Trial Court. Ireland, J. The central issue of this appeal is whether the factual findings adopted by this court in Matter of Dugan, 416 Mass. 461 (1993) (Dugan I), concerning the removal of the defendant, Janet Rowe Dugan, from her position as clerk-magistrate of the Northampton District Court (trial court) preclude her from contesting that she had committed deliberate misconduct in wilful disregard of her employer’s interest in a subsequent proceeding before the Department of Employment and Training (department) to determine her eligibility for unemployment compensation benefits. A review examiner for the department gave preclusive effect to the factual findings from Dugan I, and, after hearing evidence limited to the defendant’s state of mind, determined that she was disqualified from receiving benefits pursuant to G. L. c. 151 A, § 25 (e) (2). The department’s board of review (board) modified the decision of the review examiner and determined that the defendant was eligible to receive benefits. On judicial review, a Boston Municipal Court (BMC) judge affirmed the board. We now vacate the order and remand for the purpose of entering an order affirming the decision of the review examiner. We summarize the record. In February, 1993, this court’s Committee on Professional Responsibility for Clerks of Courts (committee) filed formal charges against the defendant, generally alleging that: “[she] had engaged in wilful misconduct in office, conduct prejudicial to the administration of justice, conduct unbecoming a clerk-magistrate that brings the office of clerk-magistrate into disrepute, and conduct that violated provisions of S.J.C. Rule 3:12, as appearing in 407 Mass. 1301 (1990), the Code of Professional Responsibility for Clerks of the Courts.” Dugan I, supra at 461-462. On March 2, 1993, this court ordered the defendant suspended from all powers and duties as clerk-magistrate until further order of this court. Id. at 462. A single justice of this court subsequently appointed a hearing officer to conduct a hearing and to determine any contested issues of fact. Id. After a hearing, the hearing officer submitted his report to the committee, including detailed proposed findings of fact and his recommendation that the defendant be removed from office. Id. at 462-463. The defendant filed no objection to the proposed findings of fact and waived argument before the committee on the discipline that should be imposed. Id. at 463. The committee adopted the hearing officer’s proposed findings of fact and recommended to this court that the defendant be permanently removed from her position, pursuant to G. L. c. 211, § 4. Id. The committee accepted the hearing officer’s reasoning that most of the various charges had been proven by clear and convincing evidence and concluded that “the uncontested facts overwhelmingly established that the [defendant] had engaged in misconduct as generally alleged, inimical to the public good, requiring that she be removed from office.” Id. We agreed with the committee’s recommendation, and on December 2,1993, we ordered that the defendant be permanently removed from her position. Id. at 463, 470. In January, 1994, the defendant filed a claim for benefits with the department. The department initially informed the defendant that she was ineligible for benefits pursuant to G. L. c. 151 A, § 25 (e) (2), because her termination was the result of her “deliberate misconduct in wilful disregard of the employing unit’s interest.” The defendant appealed, and a hearing was held before a review examiner of the department. At the hearing, counsel for the trial court asserted that the doctrine of collateral estoppel precluded the review examiner from making any determination regarding the defendant’s acts or her state of mind. After the defendant objected, the review examiner ruled that he would give preclusive effect to the findings of fact as adopted by the committee (and by this court in Dugan I) concerning the defendant’s conduct, but would take evidence concerning her state of mind. Counsel for the trial court then left the hearing, relying on the assertion of collateral estoppel. The review examiner took testimony from the defendant concerning her state of mind and, on July 28, 1995, affirmed the department’s initial denial of benefits. The review examiner concluded that the defendant “offered no testimony that dealt specifically with why she did commit these acts, that could offer mitigation for her conduct or lessen the wilfulness of her actions to a standard that did not rise to deliberate misconduct in wilful disregard of the employing unit’s interest.” The review examiner further concluded that the defendant “as a prudent and reasonable person, knew or should have known of the employer’s expectations for the performance of her duties . . . and in the absence of any mitigation, it must be decided that the [defendant’s] actions were deliberate misconduct in wilful disregard of the employing unit’s interest.” The defendant appealed to the board. On January 11, 1996, following a prehearing conference, the board adopted the review examiner’s findings of fact as based on substantial evidence, but determined that the review examiner had committed an error of law. The board concluded that the hearing officer had not conducted an inquiry into whether the claimant’s conduct was “deliberate” or in “wilful disregard” of the trial court’s interest and that collateral estoppel could not apply, because the issues before the hearing officer (and, ultimately, this court) were not identical to the issues before the board. The board then concluded that, because the trial court had “failed to furnish sufficient evidence of the [defendant’s] state of mind,” there was no basis on which to deny benefits to her. On February 7, 1996, the department and the trial court filed a petition for judicial review of the board’s decision in the BMC. On July 30, 1997, after a hearing, the BMC judge affirmed the board, concluding: “No proof of intent was required for the Supreme Judicial Court to conclude that [the defendant] should be removed from office.... Therefore the issue of intentional misconduct in wilful disregard of the employer’s interest was not actually litigated and was not essential to the Supreme Judicial Court decision or its hearing officer’s report.” The judge also concluded as a matter of law that the review examiner applied the incorrect standard of review. Citing to Garfield v. Director of the Div. of Employment Sec., 377 Mass. 94, 97 (1979), the judge stated that G. L. c. 151A, § 25 (e) (2), depends on intentional misconduct on the part of the employee, not whether the employee knew or should have known of the employer’s expectations. We transferred the appeal to this court on our own motion. The central issue here is whether collateral estoppel principles permit the hearing officer’s factual findings, adopted by the committee and by this court in Dugan I, to be applied defensively. It is well established that, in certain circumstances, collateral estoppel may be used defensively, even if the parties in the two adjudications are not identical. See Fay v. Federal Nat’l Mtge. Ass’n, 419 Mass. 782, 789-790 (1995), quoting Martin v. Ring, 401 Mass. 59, 61 (1987); Home Owners Fed. Sav. & Loan Ass’n v. Northwestern Fire & Marine Ins. Co., 354 Mass. 448, 455 (1968); Restatement (Second) of Judgments § 29 (1982). Collateral estoppel may be applied defensively if (1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom estoppel is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication is identical to the issue in the current adjudication. See Fay, supra at 790, quoting Massachusetts Prop. Ins. Underwriting Ass’n v. Norrington, 395 Mass. 751, 753 (1985). Additionally, the issue decided in the prior adjudication must have been essential to the earlier judgment. Fay, supra, citing Bannister v. Commonwealth, 411 Mass. 130, 131 (1991). The questions before us in this appeal are whether the issue decided in the prior adjudication is identical to the issue in the current adjudication and whether that issue was essential to the earlier judgment. The standard for disqualifying the defendant from benefits pursuant to G. L. c. 151 A, § 25 (e) (2), is whether there was “deliberate misconduct in wilful disregard of the employing unit’s interest.” This is an examination in two parts, requiring both deliberate misconduct and wilful disregard of the employer’s interest. See Jean v. Director of the Div. of Employment Sec., 391 Mass. 206, 208 (1984), quoting Torres v. Director of the Div. of Employment Sec., 387 Mass. 776, 778-779 (1982); Goodridge v. Director of the Div. of Employment Sec., 375 Mass. 434, 436 (1978). In applying this standard, we have long held that “the ‘critical factual issue’ in considering whether an employee’s alleged misconduct is in wilful disregard of [the] employer’s interest is the employee’s state of mind at the time of the misconduct.” Jean, supra at 209, quoting Torres, supra at 779. To determine the employee’s state of mind, we require subsidiary findings of fact, which “take into account the worker’s knowledge of the employer’s expectation, the reasonableness of that expectation and the presence of any mitigating factors.” Garfield v. Director of the Div. of Employment Sec., 377 Mass. 94, 97 (1979). The standard for removing a clerk-magistrate from office pursuant to G. L. c. 211, § 4, is whether “sufficient cause is shown therefor and it appears that the public good so requires.” The defendant correctly argues that no proof of her state of mind was required in Dugan 1. From this, she concludes that the issue decided in Dugan I is not identical to the issue in the instant case and that the factual findings from Dugan I correspondingly have no preclusive effect here. We disagree. Although the hearing officer was not required to make findings concerning the defendant’s state of mind for purposes of removing her from her position under G. L. c. 211, § 4, he nonetheless made findings from which conclusions concerning the defendant’s state of mind could be drawn. In particular, he found that the defendant had “knowingly falsified, destroyed, and failed to keep, true and accurate court records” and that she had “[dishonestly disposed of certain civil motor vehicle infractions . . . .” This finding is sufficient to warrant a conclusion that the defendant was of such a state of mind that her conduct constituted deliberate misconduct. The hearing officer further found that the defendant’s conduct with respect to these matters was “wilful misconduct and prejudicial to the administration of justice; and that it constituted conduct unbecoming a clerk-magistrate that brings that office into disrepute.” This finding is sufficient to warrant a conclusion that the defendant was of such a state of mind that her conduct was in wilful disregard of the employer’s interest. These findings are also sufficient to conclude that there is no possibility that the defendant was simply involved in a “good faith lapse in judgment,” Garfield, supra, or a “communication problem causing [the defendant], in good faith, to misunderstand the instructions given to [her].” Jean, supra at 209. Accordingly, the issue of the defendant’s state of mind was addressed in Dugan I. Although the hearing officer’s findings do not echo the exact words of G. L. c. 151 A, § 25 (e) (2), this is not necessary. In some cases, even if there is a lack of total identity between the issues involved in two adjudications, the overlap may be so substantial that preclusion is plainly appropriate. See Restatement (Second) of Judgments § 27 comment c (1982). This is such a case. The greater issue of the defendant’s state of mind was decided in Dugan I. She is thus precluded from arguing any equal or lesser issues concerning her conduct or state of mind at a second adjudication. For purposes of preclusion, such issues are identical to the issues decided in Dugan I. The defendant argues nonetheless that the issue of her state of mind was not essential to the judgment in Dugan I and concludes that preclusion therefore cannot apply. Again we disagree. Although findings concerning the defendant’s state of mind were not strictly essential to her removal, we have “expand[ed] the applicability of [collateral estoppel] to encompass certain findings not strictly .essential to the final judgment in the prior action . . .. if it is clear that the issues underlying them were treated as essential to the prior case by the court and the party to be bound. Stated another way, it is necessary that such findings be the product of full litigation and careful decision.” (Emphasis added.) Home Owners Fed. Sav. & Loan Ass ’n v. Northwestern Fire & Marine Ins. Co., 354 Mass. 448, 455 (1968). One issue underlying the hearing officer’s findings in Dugan I was the defendant’s state of mind. We made a detailed review of the hearing officer’s findings and concluded that he had “correctly characterized the [defendant’s] conduct as wilful and prejudicial to the administration of justice.” Dugan I, supra at 466. The findings were thus the product of full litigation and careful decision, and the issue of the defendant’s state of mind correspondingly was treated as essential to the adjudication in Dugan I. As such, all the elements for applying collateral estoppel are met. The board and the judge erred as a matter of law in failing to give preclusive effect to the findings from Dugan I. The defendant’s final argument is that, even if collateral estoppel applies (as we conclude that it does), the review examiner applied the incorrect standard. The standard applied by the review examiner is of no import. Counsel for the trial court was correct in contending that collateral estoppel precluded the review examiner from making any determinations concerning the defendant’s acts or her state of mind. The review examiner thus should not have taken evidence concerning the defendant’s state of mind, and the review examiner’s conclusion concerning the defendant’s state of mind has no bearing on this case, regardless of the standard applied. It is only important that the review examiner reached the conclusion that the defendant was disqualified from receiving benefits pursuant to G. L. c. 151 A, § 25 (e) (2), a conclusion that we now affirm. This case is distinguishable from Tuper v. North Adams Ambulance Serv., Inc., ante 132 (1998), which we also decide today. In that case, the plaintiff had entered into a contract with the defendant employer under which he could only be terminated for just cause. Id. at 133. The plaintiff was subsequently terminated because of the employer’s allegations that he had been insubordinate and disobeyed a direct order. Id. The board found that the defendant was not disqualified from benefits pursuant to G. L. c. 151 A, § 25 (e) (2), because from the plaintiff’s subjective view, he had not been insubordinate or disobeyed a direct order. Id. at 133-134. However, we refused to allow the plaintiff to apply collateral estoppel offensively to preclude the employer from introducing evidence that the plaintiff had been insubordinate or disobeyed a direct order at the plaintiff’s subsequent civil action for wrongful discharge. Id. at 135. The wrongful discharge action was based on whether the plaintiff had been discharged for just cause, which, in turn, depended in part on the employer’s objective view whether the plaintiff had been insubordinate or disobeyed a direct order. Id. As such, we concluded that the issues at the two adjudications simply were not identical. Id. That is not the case here, where the first adjudication determined the greater issue of the defendant’s conduct and state of mind. The defendant was thus precluded from arguing any equal or lesser issue concerning her conduct or state of mind at a second adjudication. Moreover, in Tuper, supra at 136, the proceedings to which the plaintiff sought to give preclusive effect were relatively informal, in keeping with the statutory purpose there, and the defendant had relatively little at stake. By contrast, the first proceeding in this case was most elaborate, with review carried to this court, and the defendant had the greatest incentive to litigate the issue there to the hilt. For the reasons stated above, we vacate the order of the BMC and remand for the purpose of entering an order affirming the decision of the review examiner denying benefits to the defendant. So ordered. The hearing officer appointed by this court was James P. Lynch, a retired justice of the Superior Court Department of the Commonwealth. See Matter of Dugan, 416 Mass. 461, 462 (1993) (Dugan I). The defendant subsequently filed a motion for relief from judgment, arguing that this court did not have jurisdiction under G. L. c. 211, § 4, to remove her from office because she had status as a judicial officer of the Commonwealth. See Matter of Dugan, 418 Mass. 185, 186 (1994) (Dugan II). We rejected the defendant’s argument. Id. at 187-190. This case is thus distinguishable from Director of the Div. of Employment Sec. v. Mattapoisett, 392 Mass. 858 (1984), on which the board, the BMC, and the defendant have relied. In that case, the town’s school committee terminated a tenured teacher on the basis of its findings of her “inefficiency, incapacity, conduct unbecoming a teacher. . . insubordination or other good cause.” Id. at 859. Although deciding the case on a different issue, we concluded that these findings were not entitled to preclusive effect when the teacher subsequently applied for unemployment compensation benefits, because the issues in the two adjudications were not identical. Id. at 862-863. In contrast to the instant case, we concluded that there was no evidence that the school committee had made any findings that would warrant a conclusion that the teacher’s conduct constituted deliberate misconduct or was in wilful disregard of the school committee’s interest. Id. at 863-864.

Dennis Tuper vs. North Adams Ambulance Service, Inc. Berkshire. May 4, 1998. August 5, 1998. Present (Sitting at Pittsfield): Wilkins, C.J., Abrams, Greaney, Fried, Marshall, & Ireland, JJ. Practice, Civil, Motion in limine. Collateral Estoppel. Contract, Employment. Employment, Termination. Collateral estoppel principles did not permit a discharged employee, who was awarded unemployment compensation benefits based upon the determination of the Department of Employment and Training that the employee had not been insubordinate to his employer, to use that determination offensively against his former employer in a subsequent civil action for wrongful termination, where the issues litigated in the two proceedings were not identical. [135-137] In a wrongful termination action, the trial judge correctly allowed the defendant employer’s motion to preclude any reference to the earlier proceedings between the parties before the Department of Employment and Training, based on the clear and unambiguous language of G. L. c. 151 A, § 46, which provides that such information is confidential and may not be used in any action or proceeding. [137] Civil action commenced in the Superior Court Department on November 23, 1994. Motions in limine were heard by Francis X. Spina, J., and the case was tried before him. The Supreme Judicial Court granted an application for direct appellate review. Peter C. Alessio (.Richard I. Isacoff with him) for the plaintiff. John B. Stewart for the defendant. Scott Harshbarger, Attorney General, & Neil Sherring, Assistant Attorney General, for the Attorney General, amicus curiae, submitted a brief. Ireland, J. In this case of first impression, the principal issue on appeal is whether collateral estoppel principles permit a discharged employee, who was awarded unemployment compensation benefits in an administrative decision by the Department of Employment and Training (department), to use that decision offensively against his former employer in a subsequent civil action for wrongful termination. After a hearing on pretrial motions, a Superior Court judge ruled that the department’s decision had no preclusive effect in the civil action. The case was then tried to a jury, which returned a verdict against the employee. He now claims error. We affirm. The plaintiff, Dennis Tuper, entered into an employment contract with the defendant, North Adams Ambulance Service, Inc., as an “EMT Coordinator” for the period beginning on January 1, 1993, and ending on December 31, 1994. The contract provided that the plaintiff’s employment could only be terminated for just cause. On July 26, 1993, the defendant informed the plaintiff by letter that his employment was being terminated immediately because of his “grossly insubordinate behavior,” which consisted of refusing to obey a direct order from his manager and “disparaging [the defendant] in the presence of a non-employee.” The plaintiff applied for unemployment compensation benefits. After a hearing, the department’s commissioner determined that, pursuant to G. L. c. 151 A, § 25 (e) (2), the plaintiff was not eligible for benefits, because there was “substantial and credible evidence to show that the [plaintiff] knowingly violated a reasonable and uniformly enforced company rule or policy, and that the violation was not as a result of the [plaintiff’s] incompetence.” The plaintiff appealed to the department’s board of review (board). The board adopted the commissioner’s findings of fact as supported by substantial evidence, but concluded that the commissioner’s decision was based on an error of law. The board determined instead that the plaintiff was “entitled to know” that the defendant considered his actions as insubordination and that, because the defendant had “never set forth an expectation pertaining to the following of orders and the subsequent consequence of contesting orders,” his actions “[did] not rise to the level of insubordination, but rather appealed] to be a break-down in communication.” The board further determined that the plaintiff “neither violated the [defendant’s] rule or policy, nor acted with deliberate misconduct in wilful disregard of the [defendant’s] interest,” as would be required under G. L. c. 151 A, § 25 (e) (2), to deny benefits to the plaintiff. The board correspondingly decided that the plaintiff was entitled to benefits, so long as he was otherwise eligible. Neither party sought judicial review of the board’s decision. On November 23, 1994, the plaintiff filed this action in the Superior Court. His complaint set forth claims for breach of contract, defamation, and tortious interference with a contractual relationship against the defendant and other named individuals associated with the defendant. After discovery and summary judgment proceedings, the plaintiff’s action was limited to a single contract claim against the defendant. The case was called for trial on February 20, 1997. Prior to jury selection, the plaintiff filed a motion in limine to prevent the defendant, on the basis of issue preclusion, from offering evidence that the plaintiff had been insubordinate or had disobeyed a direct order. The plaintiff’s motion also requested the judge to instruct the jury that they must assume that the plaintiff had not been insubordinate and did not disobey a direct order. The defendant filed a cross motion in limine seeking to preclude admission of the department’s decision, as well as any reference to the proceedings before the department. The judge denied the plaintiff’s motion and allowed the defendant’s motion. The case proceeded to trial and a special question was submitted to the jury, asking whether the plaintiff had “sustained his burden of proving the termination of his employment by the defendant was not for ‘just cause.’ ” The jury answered, “No,” to this question. The plaintiff filed a notice of appeal challenging the judge’s rulings on the motions in limine, and we allowed the defendant’s application for direct appellate review. Before a party will be precluded from relitigating an issue, a court must determine that (1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication. See Fay v. Federal Nat’l Mtge. Ass’n, 419 Mass. 782, 790 (1995), quoting Massachusetts Prop. Ins. Underwriting Ass’n v. Norrington, 395 Mass. 751, 753 (1985). Additionally, the issue decided in the prior adjudication must have been essential to the earlier judgment. See Fay, supra, citing Bannister v. Commonwealth, 411 Mass. 130, 131 (1991). The prior adjudication need not have been before a court. If the conditions for preclusion are otherwise met, “[a] final order of an administrative agency in an adjudicatory proceeding . . . precludes relitigation of the same issues between the same parties, just as would a final judgment of a court of competent jurisdiction.” Stowe v. Bologna, 415 Mass. 20, 22 (1993). However, our cases in which the prior adjudication was before an administrative agency have all involved the defensive use of collateral estoppel. See, e.g., Martin v. Ring, 401 Mass. 59, 62-64 (1987) (applying defensive collateral estoppel to decision of Industrial Accident Board); Stowe, supra (same to decision of rent control board of Cambridge); Almeida v. Travelers Ins. Co., 383 Mass. 226, 228-231 (1981) (same to decision of board of appeal on motor vehicle liability policies and bonds). Here, the plaintiff is attempting instead to use a prior adjudication before an administrative agency offensively to collaterally estop his former employer. The plaintiff argues that collateral estoppel should be applied offensively to preclude relitigating the board’s determinations that he had not been insubordinate and had not disobeyed a direct order. In particular, the plaintiff argues that the defendant should have been precluded from offering any evidence that the plaintiff was insubordinate or had disobeyed a direct order, and that the judge correspondingly should have instructed the jury to assume that the plaintiff had not been insubordinate and had not disobeyed a direct order. We disagree. The issues in the two adjudications were not identical. The board determined that the plaintiff was not insubordinate and had not disobeyed a direct order because he did not know (and was entitled to know) that the defendant would interpret his actions as constituting insubordination and disobedience. As such, the board’s determinations were based on the subjective knowledge and state of mind of the plaintiff. By contrast, the judge in this action instructed the jury that the determination of just cause had to be decided in part on the basis of the objective reasonableness of the defendant’s state of mind. The issues surrounding these determinations thus were not identical. It was entirely possible, and even plausible, that the plaintiff could have subjectively believed that his actions did not constitute insubordination or disobedience, while the defendant reasonably believed the opposite. The judge was, therefore, correct in ruling that the board’s determinations that the plaintiff was not insubordinate and had not disobeyed a direct order had no preclusive effect in this action. Accordingly, the judge also was not required to instruct the jury that they were to assume that the plaintiff was not insubordinate and had not disobeyed a direct order. Our conclusion here comports with over-all considerations of fairness. See Whitehall Co. v. Barletta, 404 Mass. 497, 502 (1989); Loring v. Marshall, 396 Mass. 166, 175-176 (1985) (O’Connor, J., dissenting). The proceedings before the board were relatively informal and the defendant’s stake in the adjudication was relatively small. See G. L. c. 151A, § 14 (setting forth formulas for employer’s contributions to pooled fund, based on employer’s claims experience). By contrast, in this action, the plaintiff’s demands for relief, which included punitive damages, exceeded $250,000. Applying a preclusive effect to the board’s determinations would be plainly unfair. Further, our conclusion also comports with the broad policy considerations underlying G. L. c. 151 A, § 25 (e) (2). This statute “was enacted to afford relief to those who are unemployed through no fault of their own.” Cahalen v. Commissioner of the Dep’t of Employment & Training, 41 Mass. App. Ct. 26, 27 (1996), citing Haefs v. Director of the Div. of Employment Sec., 391 Mass. 804, 806 (1984). The statute contemplates the prompt adjudication of claims for unemployment benefits, in response to the need to alleviate quickly the harsh financial consequences of unemployment. See Director of the Div. of Employment Sec. v. Mattapoisett, 392 Mass. 858, 862 n.6 (1984). If successful claimants before the department are allowed to use collateral estoppel offensively in a subsequent civil action, employers will be forced to litigate unemployment compensation claims to the hilt, with full appeals, because of the substantially greater variety and extent of civil claims which might then follow. Such a result would be directly contrary to the objective, and even the Federal mandate, of promptly resolving such claims. See California Dep’t of Human Resources Dev. v. Java, 402 U.S. 121, 135 (1971). Finally, the plaintiff also argues that the judge erred in allowing the defendant’s motion to preclude any reference to the board’s proceedings and decision in the civil action. General Laws c. 151 A, § 46, provides that, with certain exceptions not relevant here, information secured pursuant to this chapter is confidential, is for the exclusive use and information of the department in the discharge of its duties, is not a public record, and may not be used in any action or proceeding. The language of the statute is sufficiently clear and unambiguous to support a conclusion that the judge did not err. Judgment affirmed. According to the defendant’s letter to the plaintiff, the plaintiff’s manager twice ordered the plaintiff to conduct a training program at an upcoming staff meeting, and the plaintiff “loudly refused to obey” each time. The letter states that the plaintiff’s refusal took place in the presence of two other employees and a service representative from an outside company. The relevant part of the judge’s instruction defined just cause as follows: “The term just cause means whether or not there was a reasonable basis for employer dissatisfaction with an employee, and whether or not that dissatisfaction or termination was entertained in good faith for reasons such as lack of capacity or lack of diligence or failure to conform to usual standards of conduct, or some other culpable or inappropriate behavior.” Accordingly, we need not reach the question whether preclusion would not apply because the objective reasonableness of the defendant’s state of mind was not the product of “full litigation and careful decision” at the prior adjudication, and thus was not essential to that adjudication. Home Owners Fed. Sav. & Loan Ass’n v. Northwestern Fire & Marine Ins. Co., 354 Mass. 448, 455 (1968). In a different context, we held that it would be unfair to deem that a defendant, who was found “[rjesponsible” for a traffic offense and paid a $40 fine without appealing, had made an admission of liability for purposes of a subsequent civil action. See LePage v. Bumila, 407 Mass. 163, 165-167 & n.4 (1990).

SANCHEZ v LAGOUDAKIS (AFTER REMAND) Docket No. 106764. Argued April 8, 1998 (Calendar No. 11). Decided July 31, 1998. Dorene Sanchez brought an action in the Branch Circuit Court against her employer, Kostas Lagoudakis, doing business as Paradise Family Restaurant, alleging discrimination under the Handicappers’ Civil Rights Act for requiring her to prove that she was healthy enough to continue working after the employer heard a rumor that she had aids. The court, Michael H. Cherry, J., granted summary disposition for the defendant on the ground that because the plaintiff did not have aids, she was not handicapped, and the hcra was not applicable. The court conditioned the grant on the payment of the plaintiff’s lost wages and tips, costs, and attorney fees. The Court of Appeals, Gillis, P.J., and McDonald and J. W. Fitzgerald, JJ., affirmed in an opinion per curiam (Docket No. 115526). The Supreme Court reversed and remanded the case to the circuit court, holding that aids can be a handicap, and that the hcra prohibits discriminatory treatment based on an erroneous perception of a handicap. 440 Mich 496 (1992). On remand, the circuit court granted summary disposition for the plaintiff, while again awarding lost wages and tips, and increased the award for costs and attorney fees. On remand, the Court of Appeals, Doctoroff, C.J., and Neff and Fitzgerald, JJ., affirmed, holding that, with regard to a food-service employee, a severely compromised immune system associated with aids is a determinable physical characteristic of an individual that may result from disease. It held further that, in and of itself, the compromised system is unrelated to an individual’s ability to perform the duties of a waitress or qualification for such employment, as long as the characteristic is not accompanied by an opportunistic infection in a communicable form that can be transmitted through contact with food (Docket No. 189094). The defendant appeals. In an opinion by Justice Boyle, joined by Chief Justice Mallett, and Justices Brickley, Cavanagh, Weaver, and Taylor, the Supreme Court held-. For the purpose of balancing the Handicappers’ Civil Rights Act and the Public Health Code, if a food-service employer has a reasonable suspicion that an employee has aids, the employer may refuse to continue to assign the employee, pending testing for communicable diseases; the employer must have a reasonable basis for the request, and the testing requested must also be reasonable. 1. Under the Handicappers’ Civil Rights Act, a handicap is a determinable physical characteristic unrelated to a person’s ability to perform the duties of a particular job. A compromised immune system is a determinable characteristic, subject to definite and objective identification. In the context of the food-service industry, depending on the nature of the underlying opportunistic infections, aids may or may not be unrelated to the employee’s ability to perform requisite duties. 2. The Public Health Code and related administrative regulations are to be read as legislative and administrative policy that define communicable diseases that may be transmitted through food as being related to an employee’s duties in a food-service establishment, if the employee works in any capacity in which there is a likelihood that food or food-contact surfaces will be contaminated, or disease transmitted to another person. Under the code and regulations, employers are to exclude from their premises any employee suspected of having a communicable disease. Thus, to the extent that a food-service employee with aids suffers from an opportunistic infection that is a communicable disease, and reasonable accommodation will not eliminate the likelihood of contamination of food or food-contact surfaces, or transmission of the disease to another person, the employee is not protected under the hcra from exclusion. The existence of a severely compromised immune system, or a reasonable suspicion that an employee’s immune system has been so compromised, in the context of food handling, will allow an employer to request reasonable testing for communicable diseases, transmissible in a manner described under § 3-101 of the United States Department of Public Health Service, Food Service Sanitation Manual, adopted by 1981 AACS, R 325.25103(b), to ensure compliance with the Public Health Code, to prevent the spread of such diseases, and to determine the employee’s status as well as the employer’s rights and obligations under the hcra. 3. In this case, the defendant reasonably requested that the plaintiff prove that she was sufficiently healthy to continue working in the restaurant. The fear that the plaintiff presented a health threat because she might introduce other diseases into the workplace was objectively reasonable because, viewed from the employer’s perspective, the plaintiff was the source of the defendant’s information. Thus, the suspicion was based on comments bearing inherent indicia of reliability. As a matter of equity, the plaintiff is entitled to lost wages and tips as a result of this request. 4. Because the plaintiff has not prevailed under the hcra, she is not entitled to attorney fees as an item of damages under MCL 37.1606(3); MSA 3.550(606)(3) or as an item of costs under MCR 2.625. Reversed and remanded. Justice Kelly, dissenting, stated that an employer is expected to send an employee home from work where there is evidence of a communicable disease that is transmitted through food or in the process of preparing and serving food or beverages. Also, an employer may require medical clearance to return to the workplace. However, requiring an employee to be tested on the basis of a suspicion of being afflicted with aids runs afoul of the hcra and ada’s proscription against medical examinations that are not job-related and not required by business necessity. Requiring only those suspected of having aids and other compromised immune system diseases to be tested for communicable diseases, absent some discernible evidence of a food-borne illness, clearly is a violation of the hcra. Whether an action is reasonable is not a matter of law, but is a question for the jury. The trial court and the Supreme Court err in resolving the question on a motion for summary disposition. If the question is resolved as a matter of law, it must be found that the defendant’s request that Sanchez be tested was not based on a reasonable suspicion that she harbored some AIDS-associated communicable disease; rather, it was based on rumor and innuendo and his own fears. This is insufficient to justify the type of discriminatory behavior that the defendant perpetrated in this case. 217 Mich App 535; 552 NW2d 472 (1996) modified. Granzotto & Nicita, P.C. (by Mark Granzotto'), and Michael J. Steinberg for the plaintiff-appellee. George James Platsis for the defendant-appellant. Amici Curiae: Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Cynthia M. Núñez, Assistant Attorney General, for Department of Civil Rights. Chris E. Davis and Kendra S. Kleber for Michigan Protection & Advocacy Service, Inc., AIDS Partnership Michigan, HIWAIDS Wellness Networks Grand Traverse Area, Inc., HIWAIDS Resource Center, FRIENDS Alliance, Michigan Jewish AIDS Coalition, AIDS Resource Center, and AIDS Consortium of Southeastern Michigan, Inc. AFTER REMAND Boyle, J. We granted leave in this case to decide whether the Court of Appeals properly determined the parties’ rights under the Handicappers’ Civil Rights Act (hcra) and certain provisions of the Public Health Code. We hold that the Court of Appeals failed to properly balance the interests underlying the applicable statutes and regulations. We also hold that the Court of Appeals erred in sustaining the trial court’s award of attorney fees. We emphasize at the outset that the lengths to which we go in limiting this opinion by explaining what it is not about, are made necessary by the dissent’s accusation that “the opinion permits discrimination” against persons affected or suspected of being affected by aids. Post at 729. This characterization of our holding raises the specter of alarming a segment of the community already subjected to unnecessary hysteria. That possibility is the inherent consequence of the dissent’s unfortunate failure to recognize that what divides us is (1) whether the Public Health Code and regulations address solely food-borne illnesses, (2) whether a food-service employer must wait for physical symptoms to manifest before refusing to assign an employee where there is a reasonable suspicion of aids, and (3) that this case involves a reasonable suspicion having inherent indicia of reliability as opposed to mere rumor and innuendo. We have done everything possible from the judicial perspective to define a path by which employers and employees may in good faith navigate two complex and difficult sets of statutory obligations. Mindful of Cardozo’s admonition that we are not knights-errant, roaming at will in pursuit of our own ideal of truth and goodness, we refrain from attempting to redefine these obligations in favor of a particular group or personal perspective. Cardozo, The Nature of the Judicial Process, p 141. Our focus here is limited and does not concern the transmission of aids. Rather, our decision addresses the obligations of food-service employers and employees in the presence of the potential spread of underlying communicable diseases that may be associated with aids. A food-service employer is not free to terminate any employee with a suspected illness, pending evidence that the employee is disease free. The employer is not free to terminate an employee for a suspected illness that is unrelated to the employee’s ability to perform a job, and, ipso facto, is not free to require an employee to present evidence of being disease free. However, where a food-service employer has a reasonable suspicion that a food-service employee has aids, which by definition is a syndrome that involves a compromised immune system that renders the employee highly susceptible to diseases that might be communicable in a manner described under the relevant regulations, the food-service employer may refuse to continue to assign the employee, pending testing for such communicable diseases. In this unique setting, where one accepted definition of aids is that it involves certain associated diseases, some of which are infectious and possibly food borne or airborne, our result is consistent with the fact-specific inquiry dictated by the need to avoid significant health risks to the public while protecting the handicapped from sweeping generalizations based on prejudice or unfounded fears. We reverse the decision of the Court of Appeals and remand this case for further proceedings consistent with this opinion. I Plaintiff Dorene Sanchez was working as a server at defendant Kostas Lagoudakis’ Paradise Family Restaurant in Coldwater. A rumor circulated in late 1987 that she had aids. Mr. Lagoudakis directed Ms. Sanchez to prove that she was healthy enough to continue working in the restaurant. He told her that she was free to return if she proved she was healthy. Plaintiff returned with proof that she did not have AIDS, and defendant told her she could return to work. However, she complains that his action was a discharge. Ms. Sanchez filed suit, alleging discrimination in violation of the Handicappers’ Civil Rights Act (HCRA). However, the circuit court granted summary disposition in favor of Mr. Lagoudakis on the ground that, because Ms. Sanchez did not have aids, she was not handicapped and the HCRA was inapplicable. Citing “equitable” powers, the circuit court conditioned the grant of summary disposition on payment by Mr. Lagoudakis of $491.25 for Ms. Sanchez’ lost wages and tips, $316.24 in costs, and $500 for attorney fees, for a total of $1,307.49. Both parties appealed, and the Court of Appeals affirmed. 184 Mich App 355; 457 NW2d 373 (1990). On appeal to this Court, the grant of summary disposition in favor of Mr. Lagoudakis was reversed. 440 Mich 496; 486 NW2d 657 (1992). This Court said that aids can be a handicap, and that the hcra prohibits discriminatory treatment based on an erroneous perception of a handicap. We remanded the case for further proceedings: Because aids can be found to be a handicap under the Handicappers’ Civil Rights Act, and because the act prohibits discriminatory treatment, even when based on erroneous perception, we reverse the decision of the Court of Appeals and remand this case to the circuit court for further proceedings. On remand the circuit court shall determine whether the condition Sanchez was perceived to have was a determinable physical characteristic resulting from disease unrelated to her ability to perform the duties of her job or her qualifications for employment or promotion. Both of these questions are for further factual development and determination. No record is presented on which we might express an opinion. [440 Mich 506-507.][] In the opinion, we emphasized that this Court was not considering the propriety of the “equitable” award in favor of Ms. Sanchez, 440 Mich 498, n 5, and that we were expressing no opinion with regard to whether AIDS is unrelated to Ms. Sanchez’ food-service employment. 440 Mich 502, n 14. On remand, the circuit court granted summary disposition in favor of Ms. Sanchez, while again awarding $491.25 in damages. The court increased the costs from $316.24 to $725.24, and awarded the plaintiff $32,501.34 in attorney fees. Mr. Lagoudakis appealed, and the Court of Appeals affirmed in a lengthy opinion. 217 Mich App 535; 552 NW2d 472 (1996). We granted Mr. Lagoudakis’ application for leave to appeal, and we now directly address the issue whether AIDS, or the perception thereof, was unrelated to Ms. Sanchez’ employment. n In its opinion affirming the decision of the trial court, the Court of Appeals offered a detailed analysis of the central issues presented in this case. 217 Mich App 538-557. However, the Court’s holdings are well summarized in these passages: For the foregoing reasons, we hold that, with regard to a food-service employee, a severely compromised immune system associated with aids is a determinable physical characteristic of an individual that may result from disease and that is unrelated to an individual’s ability to perform the duties of a waitress or to an individual’s qualification for such employment as long as this characteristic is not accompanied by an opportunistic infection in a communicable form that can be transmitted through contact with food. In other words, a food service employee with aids has a handicap within the meaning of the hcra. [217 Mich App 552.] On the record before us, we conclude that defendant’s suspension of plaintiff violated the hcra because the suspension constituted an unlawful discriminatory act taken in response to a handicap that was unrelated to plaintiff’s abilities to perform her duties as a waitress. Accordingly, we reject defendant’s claim that plaintiff did not establish, as a matter of law, a prima facie case of discrimination under the HCRA and his corresponding claim that he was entitled to summary disposition with regard to plaintiff’s HCRA claim. [217 Mich App 554.] The Court of Appeals has held that “with regard to a food-service employee, a severely compromised immune system associated with aids is a determinable physical characteristic of an individual that may result from disease and that is unrelated to an individual’s ability to perform the duties of a waitress or to an individual’s qualification for such employment as long as this characteristic is not accompanied by an opportunistic infection in a communicable form that can be transmitted through contact with food.” 217 Mich App 552. We agree. However, there is only one method by which a typical restaurateur will be able to determine reliably whether an employee’s condition is “accompanied by an opportunistic infection in a communicable form that can be transmitted through contact with food.” That method would be to send the employee to a physician for testing. And that is precisely what the employer did in this case. The Court of Appeals has attempted to balance a food-service employer’s statutory obligation not to discriminate against an employee* and the employer’s statutory obligation to provide a healthy environment for diners and other patrons. However, to accomplish this balance — to assure continued employment opportunity in the absence of “an opportunistic infection in a communicable form that can be transmitted through contact with food” — we hold that where a food-service employer has a reasonable suspicion that an employee has aids, the employer has the right to ask that employee to undergo testing to determine whether an opportunistic infection in a communicable form is, in fact, present. We restrict our holding to the task of balancing the hcra and the Public Health Code. A The applicable legislation and administrative rules support our holding. MCL 37.1103(b)(i); MSA 3.550(103)(b)(i), at the relevant time, defined “handicap” as a determinable physical or mental characteristic of an individual or a history of the characteristic which may result from disease, injury, congenital condition of birth, or functional disorder which characteristic ... is unrelated to the individual’s ability to perform the duties of a particular job or position, or is unrelated to the individual’s qualifications for employment or promotion. We agree with the Court of Appeals that “a compromised immune system constitutes a ‘determinable’ characteristic . . . subject to definite and objective identification by serological, histological, and cultural techniques.” 217 Mich App 542. However, “[a] disability that is related to one’s ability to perform the duties of a particular position is not a ‘handicap’ within the meaning of the [HCRA].” Under the hcra in the context of the food service industry, AIDS is unique because, depending on the nature of the underlying opportunistic infections that present themselves as the syndrome’s natural process destroys the immune system, AIDS may or may not be unrelated to the employee’s ability to perform duties in the food service industry. Surgeon General’s Report on Acquired Immune Deficiency Syndrome (1986). The Public Health Code and administrative regulations promulgated thereunder mandate certain procedures if a food-service employee is suspected of having a “cornitmnicable disease.” MCL 333.12909(1); MSA 14.15(12909)(1) provides: The department shall promulgate rules to prescribe criteria for programs by local health departments and procedures for the administration and enforcement of this part. The department may promulgate rules to prescribe minimum standards of sanitation for the protection of the public health and otherwise provide for the implementation of this part. The department in promulgating these rules shall seek the advice and counsel of local health departments and the food service industry. The Michigan Department of Public Health, pursuant to its authority to promulgate administrative regulations, adopted most provisions of the United States Department of Public Health Service, Food Service Sanitation Manual. See 1981 AACS, R 325.25103(b). Section 3-101 of that manual states: No person, while infected with a disease in a communicable form that can be transmitted by foods or who is a carrier of organisms that cause such a disease or while afflicted with a boil, an infected wound, or an acute respiratory infection, shall work in a food service establishment in any capacity in which there is a likelihood of such person contaminating food or food-contact surfaces with pathogenic organisms or transmitting disease to other persons!1 1981 AACS, R 325.25909(3) further provides: The owner, operator, or person in charge of a food

LYTLE v MALADY (ON REHEARING) Docket No. 102515. Argued January 6, 1998 (Calendar No. 11). Decided July 1, 1998. Rehearing denied 459 Mich 1203. Nancy Lytle brought an action in the Muskegon Circuit Court against Michael Malady, her supervisor, and the Howmet Corporation, her employer, after she was discharged from her employment. She alleged breach of a contract providing for termination of employment for just cause only, and age and sex discrimination. Howmet asserted that the discharge was the result of a company-wide reduction in its work force. The court, R. Max Daniels, J., granted summary disposition for the defendants on all counts. The Court of Appeals, D. E. Holbrook, Jr., P.J., and Murphy and J. C. Kingsley, JJ., reversed (Docket No. 157627). The Supreme Court affirmed in part, finding that the plaintiff reasonably could have had a legitimate expectation of just-cause employment, but reversed the Court of Appeals by finding that the plaintiff failed to present evidence demonstrating the existence of bad faith on behalf of the defendant in conducting its reduction in force. The Supreme Court further affirmed the Court of Appeals in holding that the plaintiff raised a genuine issue of fact with respect to whether the defendant discriminated against her on the basis of her age and gender. 456 Mich 1 (1997). On motion by both parties, the Supreme Court subsequently granted rehearing. 456 Mich 1202 (1997). In an opinion by Justice Weaver, joined by Justices Boyle and Taylor, and an opinion by Chief Justice Mallett, the Supreme Court held: Even when an employer’s decision to reduce its work force is deemed bona fide, a discharged employee claiming age or gender discrimination may survive a motion for summary disposition by presenting sufficient admissible evidence to create a reasonable factual dispute that the employer’s proffered reason for discharge was a mere pretext and that age or gender discrimination was a true motivation underlying the plaintiff’s discharge. In this case, the plaintiff failed to provide sufficient evidence, direct or circumstantial, to allow a reasonable trier of fact to find that the defendant-employer’s reduction in force was a mere pretext for discriminatory animus. The Court further held that the plaintiff cannot assert a legitimate expectation of just-cause employment on the basis of the employer’s policy to terminate only for proper cause, particularly where an employer’s policy handbook specifically disclaims any intent to create contractual obligations with employees. 1. Generally, Michigan law presumes that employment relationships are terminable at the will of either party. The presumption can be rebutted, however, so that contractual obligations and limitations are imposed on an employer’s right to terminate an employment at will. The presumption is overcome with proof of either a contract provision for a definite term of employment, or one that forbids discharge absent just cause; an express agreement, either written or oral, regarding job security that is clear and unequivocal; or a contractual provision, implied at law, where an employer’s policies and procedures instill a legitimate expectation of job security in the employee. Provisions in a handbook will not create enforceable rights, particularly when the handbook expressly states that such provisions are not intended to create an employment contract; nor will oral assurances of job security create such rights, unless they are clear and unequivocal. On the basis of the facts of this case, the plaintiff cannot assert a legitimate expectation of just-cause employment. Moreover, the oral assurances given to the plaintiff were unclear and equivocal. Thus, the plaintiff failed to raise a triable issue with respect to whether she had just-cause employment with the defendant. 2. To establish a prima facie case of discrimination under the Civil Rights Act, a plaintiff must prove by a preponderance of the evidence that the plaintiff was a member of a protected class, suffered an adverse employment action, was qualified for the position, and was discharged under circumstances that give rise to an inference of unlawful discrimination. Once a plaintiff has sufficiently established a prima facie case, a presumption of discrimination arises. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the plaintiff’s termination. Once the employer produces such evidence, even if later refuted or disbelieved, the presumption drops away, and the burden of proof shifts back to plaintiff. The plaintiff then must show, by a preponderance of admissible, direct, or circumstantial evidence, that there is a triable issue that the employer’s proffered reasons were not true reasons, but were a mere pretext for discrimination. Disproof of an employer’s articulated reason for an adverse employment decision defeats summary disposition only if such disproof also raises a triable issue that discriminatory animus was a motivating factor underlying the employer’s adverse action. Thus, in the context of summary disposition, a plaintiff must prove discrimination with admissible evidence, either direct or circumstantial, sufficient to permit a reasonable trier of fact to conclude that discrimination was a motivating factor for the adverse action. 3. To establish a prima facie case of age discrimination, the plaintiff must prove, by a preponderance of the evidence, that the plaintiff was a member of a protected class, suffered an adverse employment action, was qualified for the position, and was replaced by a younger person. In this case, the plaintiff failed to raise a genuine issue of fact that the employer’s proffered reason for discharge, a reduction in force, was a mere pretext for discrimination. To prove that the reduction in force was a mere pretext and that age was a determining factor, the plaintiff had to show that she was treated differently from similarly situated employees. However, her proofs cannot sustain a reasonable inference that economic necessity was really a pretext for discriminatory animus on the part of the employer. 4. To prevail in a claim of gender discrimination over a motion for summary disposition, a plaintiff must raise a triable question of fact that a demotion and eventual discharge were motivated by gender discrimination, not economic or business judgment. In this case, the plaintiff met her burden of establishing a prima facie case with proof that she was a female, was a member of a protected class, and was qualified for her position, but nonetheless was demoted and then discharged under circumstances giving rise to an inference of discrimination. However, she failed to provide evidence sufficient to raise a reasonable, triable question of fact that she was similarly situated to her replacement, the new employer manager of her department, that the reduction in force was a mere pretext for discriminatory animus, and that gender was a determining factor in the employer’s decision to demote and then discharge her. Mere disproof of an employer’s proffered nondiscriminatory reason is insufficient to survive summary disposition, unless such disproof also raises a triable question of discriminatory motive, not mere falsity. The plaintiff merely provided evidence to reasonably suggest that she and her supervisor had a personality conflict. Therefore, she has not raised a triable issue with regard to whether gender discrimination was a cause of her demotion or eventual discharge. Justice Brickley, concurring, stated that the plaintiff created a question of fact whether she was a just-cause employee because she had a legitimate expectation of just-cause employment under Rood v General Dynamics Corp, 444 Mich 107 (1993). However, summary disposition for the defendant should be upheld because the plaintiff failed to raise a question of material fact that the defendant had just cause to terminate her as part of its reduction in force. Reversed. Chief Justice Mallett, concurring in part and dissenting in part, further stated that the plaintiff cannot assert a legitimate expectation of just-cause employment because the handbook specifically disclaims any intent to create contractual or binding obligations to employees. Even when an employer demonstrates a bona fide reduction in force, a plaintiff may survive a motion for summary disposition by presenting sufficient evidence that the reduction in work force was a mere pretext and that discriminatory animus was a true motivation behind the discharge. In this case, the plaintiff has not presented sufficient evidence to survive summary disposition of her age discrimination claim; however, a reasonable person could find that her demotion was motivated by gender discrimination. Justice Cavanagh, joined by Justice Kelly, dissenting, stated that reasonable minds could conclude that the employee handbook created a legitimate expectation of just-cause employment; thus, a question of fact existed precluding summary disposition in favor of the defendants. A disclaimer of contractual intent should have no effect on a policy contained in a handbook that gives rise to legitimate expectations of just-cause employment that are outside the operation of normal contract principles. In this case, the employer’s policy statement that no employee would be terminated without proper cause or reason is reasonably capable of instilling a legitimate expectation of just-cause employment, and the employer’s contractual disclaimer did not contradict that expectation, raising a question of fact regarding whether the plaintiff had a legitimate expectation of just-cause employment. While the defendant asserted that it was conducting a reduction in force, and while it appears the reduction was genuine, factual questions remain regarding whether the plaintiff was terminated as a result of the reduction in force or as a result of unlawful discrimination. 209 Mich App 179; 530 NW2d 135 (1995) reversed. Bott & Spencer, P.C. (by Timothy J. Bott and Karen M. Spencer), for the plaintiff. Vamum, Riddering, Schmidt & Howlett, L.L.P. (by Joseph J. Vogan and Paul M. Kara), for the defendants. Amicus Curiae: Miller, Canfield, Paddock & Stone (by Charles S. Mishkind) for Michigan Chamber of Commerce. ON REHEARING Weaver, J. We granted rehearing in this case to clarify the evidentiary standard that plaintiff, alleging age and gender discrimination, must satisfy to survive summary disposition under MCR 2.116(C)(10). We hold that even when an employer’s decision to reduce its work force is deemed bona fide, a plaintiff may survive a motion for summary disposition by presenting sufficient admissible evidence to create a reasonable factual dispute that the employer’s proffered reason was a mere pretext and that age or gender discrimination was a true motivation behind plaintiff’s discharge. In this case, we find that plaintiff failed to provide sufficient evidence, direct or circumstantial, to allow a reasonable trier of fact to find that the Howmet Corporation’s (defendant-employer’s) reduction in work force (rif) was a mere pretext for discriminatory animus. We also granted rehearing to decide whether the employer’s policy handbook provisions could reasonably have created a legitimate expectation of just-cause employment. We hold that plaintiff cannot assert a legitimate expectation of just-cause employment based on the employer’s policy to terminate only for cause, particularly where the handbook specifically disclaims any intent to create contractual or binding obligations to employees. Moreover, we reject plaintiff’s claim that her supervisor’s assurances regarding secure employment were sufficient to allow a reasonable juror to find just-cause employment. Accordingly, we reverse the decision of the Court of Appeals with regard to defendant-employer, and affirm the trial court’s grant of summary disposition for the employer with regard to plaintiff’s wrongful discharge claim and her age and gender discrimination claims. i A On January 29, 1973, plaintiff Lytle was hired by the employer as a general clerk in the human resources department at its Whitehall site. Plaintiff’s first immediate supervisor was John Ozar. While plaintiff worked with Ozar, she received several favorable performance evaluations and two promotions, one in 1976 and another in 1979, when she was promoted to manager of the entire Whitehall human resources department. About this time, Ozar hired Walter Boczkaja as plaintiff’s subordinate trainee, a position he held for ten years until 1989, when he assumed plaintiff’s position as department manager. Boczkaja received a series of departmental promotions during his first two years of employment while working under plaintiff’s direction. During 1984-85, Ozar retired and was replaced by William Roof, who then decided to decentralize the department, thereby allowing the Whitehall division to have its own human resources representative. Roof also hired defendant Malady as head of the Whitehall Machined Products Division and, therefore, as plaintiffs new supervisor. Plaintiff and her new supervisor, Malady, developed a personality conflict. Plaintiff claimed the conflict stemmed from a June 1987 incident when she refused to wear a dress to a company “open house.” Plaintiff alleged that Malady told her all the “girls” should wear dresses to this company picnic event. Shortly thereafter, Malady gave her an unfavorable job evaluation, her first in her time with the company. Plaintiff claimed other similar incidents followed. Plaintiff received her second critical performance evaluation in September 1987. Two years later, in January 1989, Malady recommended, and Roof approved, a change in plaintiffs job title. Although her salary and job duties remained the same, plaintiff claimed this change constituted a demotion. Plaintiff retained this newly entitled position until her November 1, 1991, discharge. The day plaintiff was demoted in 1989, Boczkaja, her subordinate and one-time trainee, assumed her position as “employer manager” of the department. In November 1991, when plaintiff was forty-four years of age, she was notified that her position was being eliminated pursuant to the employer’s reduction in force. To rebut the presumption of discrimination, the employer showed that the company-wide rif was prompted by a projected significant decline in company sales. The employer provided statistical data to establish that between 1987 and 1992 the number of employees in Whitehall was reduced by almost fifty percent (from 4,100 to 2,450) and that in 1991 the rif resulted in termination of ninety-one employees, only fifty-four of whom were under the age of forty and sixty-eight of whom were male. Six months before plaintiff’s discharge, the employer hired Andrea Achterhoff as human resources manager of a different department. About that same time, the employer also effected a transfer of Jeff Billingsley to the training section of plaintiff’s department. Billingsley was specifically transferred to facilitate training of a new manufacturing concept, a job he had been performing for the previous two years in another department. Boczkaja completed plaintiffs termination evaluation on November 22, 1991. Her supervisor, Malady, accepted the evaluation, which indicated that plaintiff should be rehired should a nonsupervisory, administrative position become available. Meanwhile, upon discharge, plaintiffs duties were distributed among other departmental employees. Roughly two months later, on January 7, 1992, plaintiff filed a complaint against the employer and her supervisor, alleging wrongful discharge, or breach of a “just-cause” employment contract, and age and gender discrimination in violation of Michigan’s Civil Rights Act, MCL 37.2202; MSA 3.548(202). B Plaintiff’s breach of contract claim was premised on two theories. First, plaintiff asserted that she legitimately expected that her employment would not be terminated except for just cause, given certain employee handbook provisions and verbal assertions. Second, plaintiff further claimed that in 1979 she told Ozar that she was considering resigning, in response to which he assured plaintiff that her employment was not only secure, but subject to further advancement. With respect to the legitimate-expectation claim, at the time she was hired in 1973, plaintiff received an employee handbook that set forth all the employer’s employment policies and procedures. Specifically the handbook provided: The contents of this booklet are not intended to establish, and should not be interpreted to constitute any contract between the Misco Whitehall Division, Product Support Operations, Reactive Metal Operations or the Technical Center of Howmet Turbine Components Corporation and any employee, or group of employees. For over twenty years we have concentrated on the production of the finest investment castings, with the development of policies and principles which aim at the attainment of pride in every day’s work for every employee, plus the satisfaction of finding opportunities for individual growth and security. [Emphasis added.] Regarding employment status, the handbook stated that a probationary period existed during which both employer and employee could evaluate whether to continue the employment relationship. That same section also included the following statement: No employee will be terminated without proper cause or reason and not until management has made a careful review of the facts. In 1981, the employer added the following disclaimer to the handbook: “[T]he Company reserves the right to terminate employees without assigning cause; therefore, the employee serves at the will of the employer.” Generally, only new employees received direct notification of this disclaimer, which was affixed to handbooks distributed to new employees. Plaintiffs job duties, however, included supervising employees who actually placed such notices in the new handbooks. When she noticed the policy, plaintiff claims she asked a co-worker if it applied to her and was told it only applied to new employees. c Pursuant to MCR 2.116(C)(10), both defendants moved for summary disposition, which the circuit court granted with respect to all counts. The Court of Appeals partially reversed and remanded. 209 Mich App 179; 530 NW2d 135 (1995). This Court granted leave to appeal, and issued a divided opinion in which the majority affirmed the decision of the Court of Appeals, finding that plaintiff reasonably could have had a legitimate expectation of just-cause employment. The majority reversed the Court of Appeals, however, by finding that plaintiff failed to present evidence demonstrating the existence of bad faith on behalf of defendant-employer in employer’s decision to conduct an RIF. The majority further affirmed the Court of Appeals holding that plaintiff raised a genuine issue of fact with respect to whether the defendant-employer discriminated against her on the basis of her age and gender. 456 Mich 1; 566 NW2d 582 (1997). We granted the reconsideration motions filed by both parties to again consider the issues presented in this case. 456 Mich 1202 (1997). n Plaintiff claimed she was wrongfully discharged because her employment could only be terminated for just cause. Generally, and under Michigan law by presumption, employment relationships are terminable at the will of either party. Lynas v Maxwell Farms, 279 Mich 684, 687; 273 NW 315 (1937). However, the presumption of employment at will can be rebutted so that contractual obligations and limitations are imposed on an employer’s right to terminate employment. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980). See also Edwards v Whirlpool Corp, 678 F Supp 1284, 1291 (WD Mich, 1987). The presumption of employment at will is overcome with proof of either a contract provision for a def

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

CHMIELEWSKI v XERMAC, INC Docket No. 106499. Argued January 7, 1998 (Calendar No. 15). Decided June 9, 1998. Gary P. Chmielewski brought an action in the Oakland Circuit Court under the Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq., against his former employer, Xermac, Inc., alleging that his employment was terminated to avoid continued health insurance premium increases caused by a liver transplant and the need to take costly antirejection medication. He further alleged wrongful discharge pursuant to Touissant v Blue Cross & Blue Shield, of Michigan, 408 Mich 579 (1980). The court, Francis X. O’Brien, J., dismissed the wrongful discharge claim because the plaintiff was an employee at will. Thereafter, he entered judgment on a jury verdict for the defendant. The Court of Appeals, Mackenzie, P.J., and J. P. O’Brien, J. (Fitzgerald, J., concurring in part and dissenting in part), affirmed, holding that the trial court did not err in refusing to instruct the jury that it should consider the plaintiff’s condition without the benefit of his antirejection medication. Nor did the trial court err in allowing evidence regarding the plaintiff’s alcoholism and the defendant’s economic condition (Docket No. 162968). The plaintiff appeals. In an opinion by Chief Justice Mallett, joined by Justices Brickley, Boyle, Weaver, and Taylor, the Supreme Court held-. Because the plain language of the Handicappers’ Civil Rights Act requires that a person actually have a determinable characteristic that substantially limits a major life activity, the trial court did not err in refusing to give the plaintiffs requested special jury instruction. Nor did the court err in admitting evidence of the plaintiff’s alcoholism and the defendant’s economic condition. 1. The Handicappers’ Civil Rights Act prohibits discrimination against persons because of handicapped status and mandates their employment to the fullest extent reasonably possible. To prove discrimination, a plaintiff must show a handicap as defined in the act, that the handicap is unrelated to the ability to perform job duties, and discrimination as delineated in the statute. To be handicapped, a person must have a determinable physical or mental characteristic that substantially limits a major life activity unrelated to the ability to perform the duties of a particular job. Handicap does not include a determinable physical or mental characteristic caused by the use of alcohol, if that physical or mental characteristic prevents a person from performing the duties of the job. 2. A person’s handicapped status should be examined as it exists presently, case by case. By limiting the act’s protection to persons having conditions that actually impose substantial limitations, the standard for determining a handicap preserves the high purpose of the act. If the burdens associated with the use of medications, prosthetic devices, or other mitigating measures are sufficiently great, the definition will be met. Courts must carefully analyze each person and must not categorically apply the definition to a given diagnosis. In this case, the plaintiff’s condition, examined as it exists with the benefit of antirejection medication, reveals no limitation of any major life activity. Thus, the plaintiff is not handicapped. Because the law requires the factfinder to assess a person’s condition as it actually exists, the trial court did not err in refusing to give the plaintiff’s requested instruction. S. The trial court also did not err in admitting evidence of the plaintiff’s alcoholism and of the defendant’s financial status. The evidence of alcoholism was relevant to whether his condition met the act’s definition of handicap and to the issue of damages, and the court cautioned the jury regarding the appropriate use of the evidence. The probative value of the evidence was not substantially outweighed by its prejudicial effect. The evidence of the defendant’s financial condition tended to disprove that the plaintiff was fired because of his alleged handicap. Affirmed. Justice Kelly, joined by Justice Cavanagh, dissenting, stated that the failure of the trial court to give plaintiff’s proposed instruction resulted in substantial injustice. If a jury is to perform its function properly, it must receive correct instructions regarding the law on the effect of mitigating measures. Generally, a decision that an instruction is accurate and applicable to a case is within the sound discretion of the trial court. While a trial court has the discretion to give an instruction not included in the Standard Jury Instructions, that discretion is limited by the duty to assure that the instructions given accurately state the law. When assessing handicap status under Michigan’s Handicappers’ Civil Bights Act, a court should consider a person’s condition as it would exist without regard to medication or other mitigating measures. Factors to be considered are the nature of the impairment, its severity, its duration or expected duration, and its long-term effect. The existence of an impairment should be determined without regard to mitigating measures such as medicines. Merely because plaintiff in this case is able to control his condition with medication does not mean that the condition does not substantially limit a major life activity. The requested jury instruction simply clarified that control of a determinable physical condition with medication does not disqualify an otherwise qualified person from handicap status. By narrowing the class of persons qualified as handicapped, the majority contracts the intent of the Legislature in enacting the hcra. 216 Mich App 707; 550 NW2d 797 (1995) affirmed. Malley & Fett, P.C. (by James K. Fett and Marla A. Linderman), for the plaintiff. Kerr, Russell & Weber, PL.C. (by Daniel G. Beyer and Joseph K Grekin), for the defendant. Amicus Curiae: Stewart R. Hakola, Mary J. Michalak, and Gayle C. Rosen, for Michigan Protection & Advocacy Service. Mat,lett, C.J. This Handicappers’ Civil Rights Act suit involves the question whether, in considering if a person has a condition that meets the act’s definition of “handicap,” the trier of fact should assess the individual without the benefit of medication or other mitigating measures, or if it should assess the individual’s condition as it presently exists with the benefit of such measures. The act requires that to qualify as having a “handicap” for purposes of coming within the act’s protection, an individual must have a determinable physical or mental characteristic that substantially limits a major life activity. Plaintiff, who underwent a liver transplant and is dependent on antirejection medication, argues that the trial court erred in refusing to give the jury a special instruction to the effect that it should consider his condition without the benefit of his antirejection medication. Because we disagree and find that the requested instruction contravenes the plain language of the statute, we affirm the Court of Appeals affirmance of the jury verdict for the defendant. We also affirm the Court of Appeals holding that the trial court did not err in admitting evidence of the plaintiff’s alcoholism and of the defendant’s economic condition. i FACTS AND PROCEEDINGS The plaintiff began working as a salesperson for defendant Xermac, a supplier of sophisticated electronic machinery, in the fall of 1985. His duties also included demonstrating and installing machinery. Plaintiff is an alcoholic, although his alcoholism apparently had little or no effect on his ability to perform his job functions. His alcoholism did, however, have an effect on his liver. In 1988, plaintiff learned that he had cirrhosis of the liver and underwent a lifesaving liver transplant. He returned to his job in December, 1989, after a six-month medical leave of absence. On January 29, 1990, he signed a sales agreement, in which he agreed to a decrease in his sales territory from a multistate region to an exclusive right for sales in Michigan, an increase in his commission rate for sales, a car allowance, and sales quotas. While he had periodically signed similar agreements while with Xermac, this was apparently the first time the company had included sales quotas. When he signed the document, the plaintiff added his own comment indicating his concern about meeting the sales quotas. The plaintiff alleged at trial that his supervisors also began to criticize his work for the first time during the period after his return. In June, 1990, the defendant terminated the plaintiff’s employment, citing his failure to meet the sales quotas delineated in the January, 1990, agreement. The plaintiff brought this employment discrimination suit and later added a claim for wrongful discharge pursuant to Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980). The defendant moved for summary disposition on both claims. The trial court, finding that plaintiff was an employee at will, dismissed the Toussaint claim. The court allowed the discrimination claim to go forward, finding that there were material issues of fact regarding whether the plaintiff came within the protection of the Handicappers’ Civil Rights Act. The plaintiff’s theory at trial was that the defendant employer terminated him in violation of the hcra to avoid continued health insurance premium increases caused by the liver transplant and his need to take costly antirejection medication for the rest of his life. The plaintiff testified at trial that the plant manager, John Purrett, visited him at his home while on medical leave and informed him that Xermac’s president, Pete Schmitt, wanted to terminate him because of the increased medical insurance costs. Mr. Donald Shaver, Xermac’s general manager and the plaintiff’s immediate supervisor, also testified that at several meetings he and Mr. Schmitt had discussed the matter of the plaintiff’s medical bills contributing to the company’s increased insurance costs. The defendant countered plaintiff’s hcra suit by arguing (1) that the plaintiff does not come within the hcra’s protection because he is not handicapped, and (2) that the plaintiff was not terminated because of an alleged handicap, but because of economic necessity. Regarding the first argument, the defendant pursued two lines of defense. First, the act requires that to be handicapped one must be substantially limited in a major life activity. MCL 37.1103(e)(i)(A); MSA 3.550(103)(e)(i)(A). The defendant argued that since the lifesaving operation, the plaintiff has no limitation in any life activities and consequently cannot claim handicapped status. Second, the defendant points out that the hcra excludes from the definition of handicap, conditions caused by the use of alcohol that prevent an individual from performing the duties of his job. MCL 37.1103(f)(ii); MSA 3.550(103)(f)(ii). The defendant argued that because the plaintiffs alcoholism necessitated the liver transplant, any claimed handicap flowing from the liver transplant falls outside the act’s protection. During the trial, the plaintiff sought to exclude evidence relating to his alcoholism and cirrhosis. He argued that it was not relevant because it did not prevent him from performing his job functions and that even if it was relevant, its prejudice outweighed any probative value. The trial court disagreed and denied the plaintiff’s motion. The plaintiff also sought to exclude evidence regarding the defendant’s economic condition, arguing that the defendant was attempting to assert an economic-necessity defense and that because it did not raise this affirmative defense during discovery or in any responsive pleadings, it was waived. The trial court also denied this motion. It found that evidence of the defendant’s economic condition was relevant to disproving a required element of plaintiff’s prima facie discrimination case because the evidence tended to disprove that he was terminated because of a handicap. During closing argument, the attorneys for the plaintiff and the defendant focused the jurors’ attention on whether the plaintiff, for purposes of meeting the hcra’s definition of handicap, should be viewed with or without his antirejection medication. The plaintiff’s attorney argued that the law requires that the plaintiff’s condition be considered without the benefit of his medication and that, because he would die if he did not take his medicine, his condition met the hcra’s requirement of substantially limiting a major life activity. Conversely, the defense argued that the law required that the plaintiff’s condition be viewed as it presently existed, i.e., with the benefit of his medication. Before closing argument commenced, the plaintiff requested a special jury instruction regarding the effect of mitigating measures, such as medication, on an individual’s handicapped status. The proposed instruction was as follows: A person that has a determinable physical [characteristic] which substantially limits one or more life activities is handicapped even if the determinable physical condition is controlled with medication or medical care. The trial court refused to give the instruction, concluding that it was more appropriate to simply instruct the jury in the language of the act, without distinguishing between the plaintiff’s premedicated and postmedicated states. During deliberations, the jury sent a note to the trial judge inquiring about the relevance of the plaintiff’s dependence on medication. The court refused to comment further on the issue and instructed the jurors to rely on the evidence presented and on the instructions already given. The jury returned a general verdict for the defendant. The Court of Appeals affirmed, rejecting the plaintiffs arguments that the trial court erred in failing to give the proposed special jury instruction and in allowing evidence regarding plaintiff’s alcoholism and defendant’s economic condition. We granted leave to appeal in an unlimited grant order. n BACKGROUND The HCRA prohibits discrimination against individuals because of their handicapped status. The purpose of the act is to mandate “the employment of the handicapped to the fullest extent reasonably possible.” Allen v Southeastern Michigan Transportation Authority, 132 Mich App 533, 537-538; 349 NW2d 204 (1984). The act is remedial, and, as a remedial act, it is to be liberally construed by the courts. See Chandler v Dowell Schlumberger Inc, 456 Mich 395, 398; 572 NW2d 210 (1998); Allen, supra. Further, in interpreting provisions of the HCRA, analogous federal precedents are persuasive, although not necessarily binding. Robson v General Motors Corp, 137 Mich App 650; 357 NW2d 919 (1984), rev’d on other grounds 427 Mich 505; 398 NW2d 368 (1986). Federal courts have similarly noted that analysis of claims under the HCRA largely parallels analysis under the federal Americans with Disabilities Act. Hamlin v Flint Charter Twp, 942 F Supp 1129, 1136 (ED Mich, 1996); Fritz v Mascotech Automotive Systems Group, Inc, 914 F Supp 1481 (ED Mich, 1996). To prove a discrimination claim under the HCRA, the plaintiff must show (1) that he is handicapped as defined in the act, (2) that the handicap is unrelated to his ability to perform his job duties, and (3) that he has been discriminated against in one of the ways delineated in the statute. Ashworth v Jefferson Screw Products, Inc, 176 Mich App 737, 743; 440 NW2d 101 (1989). This case primarily involves the first element, i.e., whether the plaintiff is handicapped as defined in the act. The act, as amended in 1990, defines handicap as follows: (i) A determinable physical or mental characteristic of an individual, which may result from disease, injury, congenital condition of birth, or functional disorder, if the characteristic: (A) For purposes of article 2 [employment discrimination], substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s ability to perform the duties of a particular job or position or substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s qualifications for employment or promotion. (ii) A history of a determinable physical or mental characteristic described in subparagraph (i). (iii) Being regarded as having a determinable physical or mental characteristic described in subparagraph (i). [MCL 37.1103(e); MSA 3.550(103)(e).][] For purposes of employment discrimination under article 2 of the act, the definition of handicap does not include: A determinable physical or mental characteristic caused by the use of an alcoholic liquor by that individual, if that physical or mental characteristic prevents that individual from performing the duties of his or her job. [MCL 37.1103(f)(ii); MSA 3.550(103)(f)(ii).] The act does not specifically address mitigating measures, such as medication. Consequently, we must engage in a more detailed analysis of how such measures affect a person’s handicapped status. We turn next to this issue and will consider the plaintiff’s other claims of error regarding admission of evidence of the plaintiff’s alcoholism and of the defendant’s economic conditions later in this opinion. in CLAIMED INSTRUCTIONAL ERROR The question whether to consider a person’s unmitigated condition in determining handicapped status under the 1990 HCRA definition of “handicap” is one of first impression. Because the HCRA definition mirrors that of the ADA, we examine federal law for guidance. While the ADA itself, like the hcra, does not specifically address the issue of mitigating measures, the Equal Employment Opportunity Commission, the federal agency charged with administering the act in the employment context, has determined that an individual’s status should be determined not as it presently exists, but as it would exist without regard to medication or other mitigating measures. The interpretive guidelines state: The existence of an impairment is to be determined without regard to mitigating measures such as medicines, or assistive or prosthetic devices. See Senate Report at 23, House Labor Report at 52, House Judiciary Report at 28. For example, an individual with epilepsy would be considered to have an impairment even if the symptoms of the disorder were completely controlled by medicine. Similarly, an individual with a hearing loss would be considered to have an impairment even if the condition were correctable through the use of a hearing aid. [29 CFR 1630.2(h), Appendix, p 350 (1997). ][] Despite this interpretive guidance, and the general rule that federal courts accord deference to agency interpretation of the act that the agency is charged to administer, many federal courts that have considered the issue have rejected the eeoc’s guidelines. Federal courts are split on whether the ADA requires consideration of the individual’s present status, or whether the eeoc guidelines should be followed and consideration be given to the individual’s condition as it would hypothetically exist without the aid of mitigating measures. We find the reasoning of those federal courts that have rejected the EEOC guidelines to be persuasive and that this reasoning applies to our interpretation of the HCRA. We will turn next to a review of the arguments presented by these courts. First, and most important, the approach taken in the EEOC guidelines contravenes the plain language of the ADA, and also of the hcra. The ADA and hcra definitions require an individual to have a condition that substantially limits a major life activity. In contrast, the administrative gloss imposed on this plain language by the guidelines provides that an individual who would have a substantial limitation if he failed to take his medication or discontinued using other mitigating measures comes within the definition. In other words, the eeoc approach, which is the appr

GILMAN v NORTHWEST AIRLINES, INC Docket No. 200161. Submitted April 22, 1998, at Detroit. Decided June 9, 1998, at 9:15 A.M. Rachel Gilman brought an action in the Oakland Circuit Court against Northwest Airlines, Inc., and Jay Jennings, alleging that the defendants wrongfully discharged her from employment in violation of an agreement that her employment could be terminated for just cause only and in violation of prohibitions in the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., against sex-based and age-based discrimination. The defendants moved for partial summary disposition, arguing that the sex- and age-discrimination claims are preempted by the Airline Deregulation Act, 49 USC 41713(b)(1). The court, Fred M. Mester, J., denied the motion. The defendants appealed by leave granted. The Court of Appeals held: The preemption clause of the Airline Deregulation Act, which prohibits states from enacting or enforcing laws or regulations related to airline prices, routes, or services, does not apply where the effect of the laws or regulations on prices, routes, or services is too tenuous, remote, or peripheral. The Civil Rights Act, insofar as it prohibits sex-based and age-based discrimination by airlines against their employees, affects airline prices, routes, or services in a manner that is too tenuous, remote, and peripheral to be preempted by the Airline Deregulation Act. Affirmed. Civil Rights — Employment Discrimination — Airline Deregulation Act — Preemption. An action brought under the Civil Rights Act alleging sex-based or age-based employment discrimination by an airline is not preempted by the federal Airline Deregulation Act (49 USC 41713[b][l]; MCL 37.2101 et seq.; MSA 3.548[101] et seq.). Sommers, Schwartz, Silver & Schwartz, P.C. (by Donald J. Gasiorek and David F. Greco), for the plaintiff. Miller, Canfield, Paddock and Stone, P.L.C. (by George D. Mesritz and Donna J. Donati), for the defendants. Before: Jansen, P.J., and Kelly and Markey, JJ. Per Curiam. Defendants, Northwest Airlines, Inc., and Jay Jennings, appeal by leave granted from the circuit court order denying their motion for partial summary disposition. We affirm. On April 17, 1978, plaintiff, Rachel Gilman, commenced employment with defendant Northwest Airlines, Inc. Defendant Jennings became plaintiffs immediate supervisor in March of 1994. On September 1, 1994, Jennings placed plaintiff on a performance improvement plan. On December 12, 1994, plaintiff was terminated from her employment for alleged poor job performance. At the time of her termination, plaintiff was an account executive in Northwest’s Detroit sales office. On May 7, 1996, plaintiff filed a three-count complaint against defendants. Count one stated a claim for wrongful discharge wherein plaintiff alleged that she could be terminated for just cause only. Count two was a claim of age discrimination in violation of the Civil Rights Act wherein plaintiff contended that she was treated differently than the younger employees and was terminated on the basis of her age. Count three was a claim of sex discrimination in violation of the Civil Rights Act wherein plaintiff claimed she was treated differently than the male employees and was terminated on the basis of her sex. Subsequently, defendants filed a motion for partial summary disposition pursuant to MCR 2.116(C)(4) and (8). They argued that plaintiff’s sex- and age-discrimination claims, brought under the Civil Rights Act, were preempted by the Airline Deregulation Act (ADA), 49 USC 41713(b)(1), and thus, plaintiff should only be able to proceed with respect to her claim of breach of employment contract in state court. After a hearing on defendants’ motion, the trial court concluded that plaintiff’s claims were not preempted by the ADA and denied defendants’ motion for partial summary disposition. We granted defendants’ subsequent application for leave to appeal. On appeal, defendants claim that the trial court erred in denying their motion for partial summary disposition because plaintiffs age- and sex-discrimination claims under the Civil Rights Act were preempted by the ADA. The question presented in this appeal, whether state Civil Rights Act claims are preempted by the ADA, is one of first impression in Michigan. In order to decide the question presented in this case, it is necessary to examine the legislative intent behind the enactment of the ada, and the preemption provision in particular. The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993). Statutory language should be interpreted reasonably, considering the purpose of the act. Barr v Mt Brighton Inc, 215 Mich App 512, 516; 546 NW2d 273 (1996). Once the intention of the legislation is discovered, it must prevail over any construction arrived at through a conflicting rule of statutory construction. Terzano v Wayne Co, 216 Mich App 522, 527; 549 NW2d 606 (1997). In determining the intent of the Legislature, the court must first look to the specific language used in the statute. House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993). If the plain and ordinary meaning of the language is clear, judicial construction is normally not necessary or permitted. Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992); Heinz v Chicago Rd Investment Co, 216 Mich App 289, 295; 549 NW2d 47 (1996). However, if reasonable minds could differ with respect to the meaning of a statute, judicial construction is appropriate. Id. The court must look to the object of the statute, the harm it is designed to remedy, and apply a reasonable construction that best accomplishes the purpose of the statute. Marquis v Hartford Accident & Indemnity (After Remand), 444 Mich 638, 644; 513 NW2d 799 (1994). The ADA was enacted by Congress in 1978 in large part to deregulate domestic air transport. American Airlines v Wolens, 513 US 219; 115 S Ct 817; 130 L Ed 2d 715 (1995). Two of its primary purposes are the “maintenance of safety as the highest priority in air commerce” and the “placement of maximum reliance on competitive market forces.” Belgard v United Airlines, 857 P2d 467, 471 (Colo App, 1993). In addition, the quality of the services rendered by an airline employee is of extreme importance because it directly affects the services the airline renders to its customers. Id. Thus, in order to ensure that the states would not interfere with federal deregulation or enact similar laws, the ada included a preemption clause that provides, in relevant part: Except as provided in this subsection a State, political subdivision of a State, or a political authority of at least two States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any air carrier that may provide air transportation under this subpart. [49 USC 41713(b)(1).] Since the statute was enacted, there has been a clear indication from the courts that Congress intended this provision to be broadly interpreted. However, there is nothing in the language of the statute to suggest that Congress intended, nor does the case law suggest, that the preemption provision should be interpreted in such a broad and extensive manner as to completely shelter airlines from a state action by an employee who has allegedly been discriminated against by the airline in no connection whatsoever to the services it provides. Indeed, the ada was concerned with the states’ attempt to regulate airlines fares, routes, and services, not employment practices. Delta Air Lines, Inc v New York State Div Of Human Rights, 229 AD2d 132, 137; 652 NYS2d 253 (1996). In Morales v Trans World Airlines, Inc, 504 US 374, 384; 112 S Ct 2031; 119 L Ed 2d 157 (1992), the Supreme Court explained that a state law is “related to” airline routes or services if it has “a connection with or reference to airline ‘rates, routes, or services.’ ” The Court limited the scope of the preemptive effect of the ada, however, by noting that “[s]ome state actions may affect [airline fares] in too tenuous, remote, or peripheral a manner” to have a preemptive effect. Id., 390. In other words, if a provision in a state statute is “too tenuous, remote, or peripheral” to have an effect on the prices, routes, or services provided by an airline, the ADA does not preempt the provision. This notion was reaffirmed in Wolens, swpra, 225, where the Court stated that “[t]he ADA’s preemption clause . . . ruled out ‘only those state laws and regulations that specifically relate to and have more than a tangential connection with an airline’s rates, routes or services.’ ” Hence, the decisive issue in the instant matter is not simply whether any claim brought under the Civil Rights Act is preempted by the ADA, but whether sex- and age-discrimination claims involving physical characteristics that are unrelated to an individual’s job qualifications and too tenuous or peripheral to affect the airline’s services fall within the scope of the preemptive provision of the ADA. In support of their argument that plaintiff’s state claims are preempted by the ADA, defendants rely primarily on a recent opinion of this Court, Fitzpatrick v Simmons Airlines, Inc, 218 Mich App 689, 690; 555 NW2d 479 (1996). In that case, the plaintiff was employed by a division of American Airlines and was terminated because he did not meet the height and weight standards promulgated by the defendant. Id. Thereafter, the plaintiff filed an action under the Civil Rights Act, alleging that he was unlawfully discharged because he was overweight according to the standards utilized by the defendant. Id. The defendant moved for summary disposition, maintaining that the plaintiff’s claim was preempted by the Airline Deregulation Act, 49 USC 41713(b)(1). Fitzpatrick, supra, 690. The trial court granted the defendant’s motion for summary disposition, and the plaintiff appealed, arguing that the trial court erred because his claim was not preempted. Id., 690-691. On appeal, this Court explained that the first inquiry was whether preemption was expressed or implied in the statute at issue. Id. The language contained in the ada expressly preempts a state from enacting any law relating to services of any air carrier. Id. Thus, the next question was whether the Civil Rights Act is a law relating to services of an air carrier. Id., 691. Relying on Morales, supra, this Court found that it was. Id. This Court concluded that the provision of the Civil Rights Act that protected employees from discrimination based on height or weight was “related to” services of an air carrier, and that the Civil Rights Act would restrict the defendants’ ability to select employees. Fitzpatrick, supra, 692-693. Accordingly, this Court denied the plaintiff’s claim and affirmed the trial court’s grant of summary disposition in favor of the defendants, finding that the plaintiff’s state claim was preempted by the ADA. Id., 693. Defendants also cite Belgard, supra, 467, where the plaintiffs were denied employment as pilots because they had undergone eye surgery. The Colorado Court of Appeals determined that they could not pursue their claims under the state’s handicap discrimination law because the law, when applied to an airline, had “a connection with” or “reference to” the airline’s services. The Colorado Court of Appeals explained: [A]ny law or regulation that restricts an airline’s selection of employees, based upon their physical characteristics, must necessarily have a connection with and reference to, and therefore must be one “relating to,” the services to be rendered by that airline. [Id., 471.] We believe that the foregoing cases of preemption are distinguishable from the instant case. In particular, there is an important distinction to be drawn between the effect physical abilities or characteristics have on an airline’s services and the effect one’s age or sex has on the industry. For instance, it is easy to make sense of the airline industry’s need to implement height and weight standards for certain positions in order to promote safety and efficiency when providing services. Thus, it is conceivable that an individual’s weight or height may be sufficiently related to the safety and quality of services an air carrier can provide to permit preemption on this basis. Hence, we do not contest that the quality of airline employees, flight personnel in particular, as well as their physical capabilities and good health, will directly affect the services rendered by an airline. In fact, this element was such a concern of the airline industry that the federal legislation established minimum physical requirements for such personnel. See Belgard, supra, 471. However, nowhere in the statute are there minimum requirements pertaining to an individual’s age or gender to ensure top quality employees. Indeed, these qualities are, for the most part, wholly unrelated to an individual’s ability to carry out duties and serve the airline industry. We are unable to discern how an individual’s age or sex has any reasonable connection or relation to airline services or how a state law abridging unlawful discrimination on those bases will restrict an airline’s authority to select employees. To the contrary, a state law prohibiting an airline from hiring or terminating employees on the basis of race, gender, or ethnicity is wholly unrelated to the services it provides. See also Ruggiero v AMR Corp, 1995 WL 549010 (ND Cal, 1995) (holding the plaintiffs retaliatory discharge claim distinguishable from claims for discrimination based on physical characteristics because the ada did not regulate wrongful termination); Anderson v American Airlines, Inc, 2 F3d 590 (CA 5, 1993) (holding that the ADA was passed to deregulate the airline industry and a claim for retaliatory discharge had too remote an effect on services to be preempted). In fact, the United States Supreme Court entered a ruling consistent with this theory several years ago in Colorado Anti-Discrimination Comm v Continental Air Lines, Inc, 372 US 714; 83 S Ct 1022; 10 L Ed 2d 84 (1963). The Court held that a federal law did not preempt the enforcement against an air carrier of a Colorado statute prohibiting racial discrimination in the hiring of employees. The Court reasoned that the state law could not have an adverse effect on, or even interfere with, the required national law prohibiting discrimination, because a contrary requirement would not be enforceable in any state. In contrast to state statutes that regulate an airline’s hiring practices with respect to physical characteristics (i.e., height, weight, handicap), state statutes that prohibit discrimination based on age and race do not raise the same potential for conflicting rules and inconsistencies because it is illegal, under the laws of all states, to discriminate against an employee on the basis of age or gender. More recently, in Abdu-Brisson v Delta Air Lines, Inc, 128 F3d 77 (CA 2, 1997), the Second Circuit Court of Appeals held that the plaintiffs age discrimination claim was not preempted by the ADA because the defendants were unable to establish how enforcement of the state laws would frustrate the purpose of the ADA. In particular, the Second Circuit Court of Appeals noted that the enforcement of New York’s age discrimination law would not affect competition between airlines, which was the primary concern in enacting the ADA. Id., 84. The court distinguished the case from Morales and Wolens, noting: [W]hether an airline discriminates on the basis of age (or race or sex) has little or nothing to do with competition or efficiency. Although one may argue that shedding older workers can result in savings, such savings will result in a better competitive position only indirectly, if at all. Moreover, to the extent that the scope of the protected group in age discrimination statutes may vary from jurisdiction to jurisdiction, state and local age discrimination laws are little different from generally applicable tax, environmental, or blue sky laws, which as a general matter are not preempted under the ADA. [Id.] Similarly, in Delta Air Lines v New York State Div of Human Rights, supra, 137-138, the court upheld several age, disability, and marital status discrimination claims filed by employees under state law. In holding that the claims were not preempted by the ada, the court remarked that “preemption ... is not favored absent persuasive reasons either that the nature of the . . . subject matter” or the state regulations requires preemption or Congress has expressly prescribed preemption, and that “preemption must be determined on a case-by-case basis,” ascertaining “ ‘whether the dangers and hardships of diverse regulation justify foreclosing a State from the exercise of its traditional powers.’ ” Id. (Citation omitted.) The court reasoned that compliance with the state human rights laws in no way interfered with the airline’s ability to comply with the ada because the statute did not prescribe what amounted to discrimination against airline employees. Id., 139. Moreover a finding either for or against the airline would not frustrate the purpose of the ADA. Id. Accordingly, the plaintiffs’ claims were not preempted. Id. We note that recently, in Parise v Delta Air Lines, 1997 WL 375296 (MD Fla, 1997), a United States District Court ruled that the ada preempted state discrimination laws where the petitioners alleged age discrimination. However, that case is inapposite to the instant case because the conduct for which the plaintiff was ultimately terminated was determined to have directly affected the services of the airline. The court explained that an airline’s decision to terminate an agent for fear of customer safety was related to the airline’s services and fell within the preemption clause of the ADA. Id. However, in so ruling, the court cautioned that “the ada does not ‘completely preempt’ employment anti-discrimination laws ([only] if they ‘relate to’ airline ‘rates, routes, or services,’) . . . ” Id., * 3. The foregoing cases make it clear that while the ADA has been interpreted to have a broad preemptive sweep over state Civil Rights Act claims, there must, nonetheless, be an apparent connection or relation to the airline’s routes, prices, or services, in order for the preemptive provision of the ada to be applicable. Furthermore, we note that defendants did not introduce any evidence that plaintiff’s claims would frustrate the purposes of the ada. Nor did defendants put forth any evidence to show that plaintiffs age- and sex-discrimination claims were connected with or related to the airline’s routes, prices, or services. We hold, therefore, that plaintiff’s claims were not preempted by the ADA. In light of our conclusion, the trial court properly denied defendants’ motion for partial summary disposition. Affirmed. MCL 37.2101 et seq.-, MSA 3.548(101) et seq. The plaintiff was terminated for admittedly making numerous violent threats to his supervisor and co-worker.