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### STATE OF MICHIGAN

COURT OF APPEALS

BEVERLY KNOX-PIPES,

Plaintiff-Appellee, UNPUBLISHED September 24, 2015

v No. 322295
Genesee Circuit Court
GENESEE INTERMEDIATE SCHOOL DISTRICT and LISA HAGEL, LC No. 11-097246-CK

Defendants-Appellants.

Before: M URRAY , P.J., and M ETER and O WENS , JJ.

P ER C URIAM

.
Defendants, Genesee Intermediate School District (GISD) and Li sa Hagel, appeal as of right from an April 9, 2014 judgment in favor of plaintiff, Bev erly Knox-Pipes, entered by the trial court following a jury trial. Plaintiff was awarded a to tal of $760,000 in economic and noneconomic damages for claims of violations of the Whistleblow ers’ Protection Act (WPA),
MCL 15.361 et seq , and breach of contract. 1 For the reasons discussed later, we reverse the trial court’s denial of summary disposition for the Whistleblowers’ c laim, and we reverse and remand
to the trial court for a new tr ial for the breach of contract c laim.

I. FACTS AND PROCEDURAL BACKGROUND

Plaintiff was the Assistant Superintendent for Technology and Media Services and also
served as the Executive Director for Genesee Network for Educat ion Telecommunications (GenNET). GenNET was a consortium that served over 20 school d istricts in Genesee County
and the GISD. Plaintiff was re sponsible for supervising the da ily duties of the technology department, which included distributing cell phones and other G ISD technology. In 2010, GenNET and the GISD became involved in litigation with Clio Sch ools, who claimed that it and other school systems, through their various contracts with GenN ET and the GISD, were being forced to pay “bloated and unnecessary costs” incurred by the G ISD (“GenNET lawsuit”).

1 Plaintiff also brought a claim for gender discrimination under the Elliot-Larsen Civil Rights Act, MCL 37.2101 et seq , for which the jury found no cause of action. Accordingly, th at claim
will not be addresse d in this opinion.-2- Plaintiff was listed as a witness in that litigation, was a pot ential deponent, and provided an
affidavit.

Plaintiff alleged that Lisa Hagel, the superintendent of the G ISD, suspected that the Clio Schools’ allegations were correct, so she devised a plan to con ceal information from Clio Schools. Plaintiff alleged that Hagel did not think that she c ould persuade plaintiff to lie with her. Plaintiff alleged that Hagel’s distrust of plaintiff as w itness in the GenNET lawsuit was evident by remarks Hagel made. Plaintiff alleged that Hagel fa lsely accused her of misusing $480 worth of telephone equipment in an effort to unlawfully te rminate plaintiff. Plaintiff also alleged that Hagel threatened to disclose plaintiff’s extramari tal affair with Thomas Svitkovich, the superintendent emeritus, if she did not resign. Plaintiff alleged that Hagel’s actions were an attempt to force plaintiff to resign to cover up Hagel’s own un lawful conduct of concealing
information from Clio Schools.

Plaintiff alleged that after initiating this action, Hagel the n hired Plante Moran to conduct an audit and “spoon-fed” it misinformation that led to false fi ndings and charges against plaintiff so that Hagel could (1) cover up her unlawful conduct in the Ge nNET lawsuit, (2) retaliate against plaintiff for not resi gning, and (3) retaliate against plaintiff for filing this action. Plaintiff also alleged that her employmen t contract could only be termina ted if she engaged in conduct that amounts to “moral turpitude,” which she alleged she did no t. Therefore, her firing was a breach of her employment contract.

Defendants, on the other hand, argued that plaintiff was termi nated because of her misconduct. Specifically, it was discovered that plaintiff hadgiven Svitkovich, a nongovernment employee, a cell phone that was paid for by the G ISD. Defendants alleged that pursuant to the GISD’s policies, district equipment could not b e loaned unless approved by the superintendent. In this case, H agel claimed that she did not g ive approval for Svitkovich to use a cell phone. This became known while the GenNET lawsuit was pen ding. Defendants claimed that this was significant because Clio Schools were claiming th at it was forced to incur unnecessary costs through the Ge nNET consortium. Specifically, GenNET is funded by the local school districts and is based on a pricing model, which H agel explained is the cost of salary, benefits, and technology needed to operate the system. The costs are divided amongst all
the districts. Defendants alle ged that cell phones are include d in these costs. Therefore, when plaintiff gave Svitkovich the cell phone, it was paid for by th e local school districts. Hagel
claimed that because this was th e very issue that Clio Schools was suing GenNET for, she placed plaintiff on paid administr ative leave in October 2011.

Defendants alleged that once pl aintiff was placed on administr ative leave, further investigation revealed that she had been having an extramarital affair with Svitkovich. Defendants alleged that plaintiff used the cell phone to advanc e the affair. Defendants further alleged that plaintiff was forwarding confidential information to Svitkovich and falsified her evaluation. At a meeting held in November 2011, Hagel claimed that she provided plaintiff the opportunity to resign quietly. As a result, plaintiff initiate d this action in December 2011.
Defendants then hired Plante Moran to conduct an audit in defen se of plaintiff’s action, which defendants alleged revealed, among other things, that plaintiff engaged in a pattern of improper travel at the taxpayer’s expense. Therefore, based on the info rmation from Hagel and the-3- investigation by Plante Moran, the Board of Education voted to terminate plaintiff effective August 2012.

Following discovery, plaintiff m oved for partial summary dispo sition as to liability for the following claims: (1) the type two WPA claim for participation in this action, (2) the type two WPA claim for plaintiff’s participation in the GenNET lawsu it, and (3) the breach of
contract claim. Defendants also moved for summary disposition on all of plaintiff’s claims. The trial court denied summary disposition regarding the Whistleblo wers’ claim for participating in the GenNET lawsuit, but granted summary disposition for defenda nts regarding the Whistleblowers’ claim for pa rticipating in this action. 2

Following numerous motions in limine filed by defendants, the case proceeded to trial where the jury found for plaintiff on both the Whistleblowers’ claim and breach of contract
claim. For the Whistleblowers’ c laim, plaintiff was awarded $3 20,000 for present economic loss, $320,000 for future economic loss, $85,000 for present no neconomic loss, and $35,000 for future noneconomic loss, tota ling $760,000. She was awarded $3 20,000 in economic damages for her breach of contract claim, but would not recover more th an the $760,000 since the claims had duplicate elements. Consequently, this appealed ensued.

II. SUMMARY DISPOSITION

A. WHISTLEBLOWERS’ CLAIM

First, defendants argue that the trial court erred by denying their motion for summary disposition as to the Whistleblowers’ claim. We review de novo a trial court’s decision on a motion for summary disposition. Hoffner v Lanctoe , 492 Mich 450, 459; 821 NW2d 88 (2012). “A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint.” Maiden v Rozwood , 461 Mich 109, 119; 597 NW2d 817 (1999). In reviewing the mot ion, we consider “the pleadings, admissions, and other evidence submitted by the part ies in a light most favorable to the nonmoving party.” Latham v Barton Malow Co , 480 Mich 105, 111; 746 NW2d 868 (2008). Summary disposition is properly granted “if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id. A genuine issue of material fact
exists “when reasonable minds could differ on an issue after vi ewing the record in the light most favorable to the nonmoving party.” Allison v AEW Capital Mgt, LLP , 481 Mich 419, 425; 751 NW2d 8 (2008).

The WPA, MCL 15.362, provides,

An employer shall not discharge, threaten, or otherwise discri minate against an employee regarding the employee’s compensation, term s, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verballyor in writing, a violation or a suspected violatio n of a law or regulation or ru le promulgated

2 This ruling is not conteste d on appeal, and therefore, will no t be discussed.-4- pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the rep ort is false, or because an employee is requested by a public body to participat e in an investigation, hearing, or i nquiry held by that public body, or a court action.

To establish a prima facie case under the WPA, a plaintiff nee d only show that (1) he or she was engaged in protected activity as defined by the act, (2) he or she suffered an adverse employment action, and (3) a causal connection exists between the protected activity and the adverse employment actio n. Whitman v

Burton , 493 Mich 303, 313; 831 NW2d 223 (2013).

The plain language of the statute provides protection for two t ypes of ‘whistleblowers’: (1) those w ho report, or are about to report , violations of law, regulation, or rule to a public body, and (2) those who are req uested by a public body to participate in an investig ation held by that public body or in a court
action. Henry v Detroit , 234 Mich App 405, 409; 594 NW2d 107 (1999).

Plaintiff claimed that defendant s retaliated against her for p articipating in the GenNET lawsuit, thereby making her a type two whistleblower. Defendan ts’ main argument on appeal is that plaintiff never participated in the GenNET lawsuit because she was not deposed, and her unsupported allegation that she gave an affidavit was insuffici ent to show she actually participated in a court action. Contrary to defendants’ argume nt, however, plaintiff was not required to give testimony at h er deposition, or even write an affidavit to be considered a type
two whistleblower. Shaw v Ecorse , 283 Mich App 1, 11-12; 770 NW2d 31 (2009). Rather, an employee is protected simply by being requested to participate in an investigation, hearing, inquiry, or court action. MCL 15.362. There is no requirement that the employee actually participate. See Shaw , 283 Mich App 12 (“Provisions not i ncluded in the statute by the Legislature should not be include d by the courts.”); M Civ JI 1 07.02 (instructing that a request to participate is protected activ ity even if the employee does not actually participate). Therefore, whether or not plaintiff actually provided an affidavit or depo sition testimony is irrelevant. Plaintiff engaged in protected a ctivity when she was requested by a public body to participate in a court action, i.e., when she was listed as a witness and her deposition was scheduled or when she provided an affidavit at t he request of her employer.

Once plaintiff established that she engaged in protected activ ity, i.e., being requested to participate in the GenNET lawsuit, plaintiff was then required to show a causal connection between her termination and her request to participate in the G enNET lawsuit. Plaintiff was required to show that defendants “took adverse employment actio n because of plaintiff’s protected activity” or that the a ction “was in some manner infl uenced by the protected activity.” West v Gen Motors Corp , 469 Mich 177, 185; 665 NW2d 468 (2003).

In opposing summary disposition, plaintiff relie d on notes Mic hael Moorman, the GISD’s Human Resources Director, took during a meeting between Hagel a nd plaintiff regarding plaintiff’s actions, to argue tha t Hagel was displeased with pl aintiff’s participation in the GenNET lawsuit and that is why she was terminated. Even when v iewed in a light most favorable to plaintiff, a revie w of the notes and the depositio n testimony explaining those notes, shows that Hagel was not displeased with plaintiff’s participat ion in the GenNET lawsuit.-5- Rather, Hagel was displeased with the fact that plaintiff gave Svitkovich a district-paid cell phone and forwarded Board documents and attorney-client informa tion to him in the midst of the
lawsuit.

For example, during the meeting Hagel told plaintiff, “There i s a group of us trying to defend you and GenNET. This is a slap in the face.” Hagel tes tified that there was a group comprised of attorneys and the executive Board of GenNET devoti ng time to resolve the lawsuit with Clio Schools. Hagel testified that some of the local dist rict superintendents were criticizing plaintiff and alleging that she could not be trusted, that she did not follow-up with inquiries, and that she did not listen. According to Hagel, the Board and att orneys were working hard to support plaintiff and defend her and GenNET. So it “was a slap in the face” to learn that in turn plaintiff was forwarding attorn ey-client information, such as p roposed settlement resolutions that the Board and the attorneys were trying to keep internal, to Sv itkovich, who was “kind of responsible” for the lawsuit. Hagel admitted that she was very displeased with the fact that plaintiff was forwarding information to Svitkovich who was not involved in the lawsuit because “you can’t share this attorney-c lient privileged information if we’re going to resolve a lawsuit that’s based on a district perceiv ing that they can’t trust an entity.”

During the meeting, Hagel also stated, “If one sup finds out o ur credibility goes out the window.” Hagel testified that the GISD’s technology department was highly criticized for their customer service and Hagel, and others, were working hard to im prove its credibility. She
testified that if the local sc hool districts found out that pla intiff was forwarding internal information to Svitkovich, who th e districts did not trust, the n the GISD would lose its credibility. Likewis e, Moorman understood that the statement r eferred to the fact that if the local school districts, who fund GenNET, found out that plaintiff, wh o was the executive director of GenNET, was passing out or abusing GISD-owned equipment at the local districts’ expense, it would hurt the GISD’s credibility.

Hagel also explained that her statement made during the meetin g that “I feel so betrayed on a personal and professional level,” meant that she and plain tiff had a quality working relationship and both valued tru st, so she felt hurt by plainti ff’s sneaky actions.

Further, plaintiff highlighted H agel’s statement made during t he meeting that “[w]e developed a plan of attack. Y ou remember I brought you in and told you these are the things that we need to work on, and that the sups are saying its either Gen NET or BKP. I have copies of emails with information that should not be going out.” Plainti ff asserted that the “plan of attack” referred to Hagel’s plan to conceal information from Clio Schoo ls, which plaintiff did not want to be a part of. Hagel, however, testified that

we developed a plan of attack because I did have people coming to me and say you need to make a choice, you either fix Beverly, get rid of B everly, or GenNET is going to dissolve, this is not working. Beverly and I had m any conversations about things that were not going right in Technology, were not going right with vendors, complaints that people had shared, finally nothing was happening, we had a meeting and I put it in writing and we came up with a plan and this is worded attack or plan of improvement, plan of help, of ways tha t she could develop her skills, help build credibility, bring her staff in, educate her staff, work-6- more closely with vendors that would make her successful immedi ately in the eyes of local districts so she would be successful.

Hagel testified that she renewed plaintiff’s contract in Septem ber 2011 because she felt that plaintiff had the skills and expe rience to be successful—that i s why they were working on the improvement plan. Moorman testified that he also thought “plan of attack” meant that plaintiff and Hagel had been working on some goals and other things that needed attention. Further, plaintiff testified that in Oct ober 2010, Hagel provided plaint iff with a letter outlining some areas of improvement for plaintiff, specifically “bringing the distri cts of Genesee County back into a leadership mode in technology.”

Finally, plaintiff highlighted Hagel’s statement made during t he meeting that “So far the investigation has been very self-directed, trying to keep it as quiet as possible.” Hagel explained that she tried to conduct a majority of the investigation into plaintiff to keep it quiet for plaintiff’s sake.

The only “direct” evidence that showed Hagel terminated plaint iff because of her request to participate in the GenNET lawsuit was an unsigned, undated s tatement plaintiff herself wrote in response to a July 17, 2012 letter from Hagel informing plai ntiff of the charges against her supporting her termination. In that statement, plaintiff claim ed: “Hagel was critical of my involvement in the GenNET/Clio lawsuit and the way I was going to testify,” and that Hagel used the investigation to threaten plaintiff into resigning, an d when she did not, she was terminated. But when viewed with all the other evidence, this statement does not create a question of material fact. Even when examining the notes alone , without Hagel’s explanation, it is clear that Hagel was critical of plaintiff’s involvement onl y because her actions amounted to alleged misconduct that could cost the GISD. There is no indic ation, as plaintiff suggests, that Hagel terminated plaintiff befo re her deposition was taken because of her distrust of plaintiff as a witness in the GenNET lawsuit, particularly where plaintiff cla ims she did nothing wrong and would not have provided testimony unfavorable to defendants. R ather, Hagel was clearly upset that plaintiff was abusing GISD-o wned equipment at the local di stricts’ expense, which is the very thing that Clio Schools was countersuing the GISD and GenN ET for. Accordingly, even when viewed in a light most favorable to plaintiff, there is no evidence that Hagel terminated plaintiff because of her request to participate in the GenNET lawsuit. 3 Rather, she was

3 Notably, the GenNET lawsuit was initiated in 2010, and plainti ff wrote an affidavit for the lawsuit on October 29, 2010. Her contract was renewed in Septe mber 2011, which included an increase in pay. She was placed on administrative leave in Oct ober 2011, but not terminated until August 2012. The lengthy period between her request to p articipate in the GenNET lawsuit and her termination, and the fact that her contract was renewed during that period, precludes an
inference of retaliation. Aho v Dep’t of Corrections , 263 Mich App 281, 291; 688 NW2d 104 (2004) (“Courts have consistentlyheld that a lengthy period be tween the protected activity and the adverse employment action precludes a nexus between the [pr otected activity and adverse action.]”).-7- terminated for her alleged misconduct for providing a nongovern ment employee with a government-paid cell phone.

Nevertheless, plaintiff argues that her act of providing Svitk ovich the cell phone and documents was protected activitybecause she participated in th e court action by using the cell phone and emails to discuss the GenNET lawsuit with Svitkovich. Plaintiff testified that she forwarded the attorney-client communications to Svitkovich beca use it was her understanding that he was still a part of the GenNET lawsuit, in that he was a person to be deposed and “was also an active participant historically.” Plaintiff testified that she felt, in her professional opinion, that Svitkovich had the kno wledge base that would help the GISD and GenNET.

The WPA makes clear that protected activity is where “an emplo yee is requested by a public body to participate in . . . a court action.” MCL 15.36 2. However, plaintiff’s actions of providing a cell phone and documen ts to Svitkovich, even if to discuss the GenNET lawsuit, were not protected activity, as they do not involve participati on in a court action at the request of a public body. See Henry , 234 Mich App at 412-413 (stati ng that providing deposition testimony is participating in a court action because the plaint iff is subpoenaed and compelled to testify). Other than to state that she was merely discussing t he GenNET lawsuit with Svitkovich, there is no evidence to suggest that these communications were necessary to, or part of, the court action. Because plaintiff’s actions were not protected activit y, she again fails to establish a prima facie case under the WPA.

Plaintiff also argues on appeal t hat there were actually two c laims involving a type two whistleblower that were submitted to the jury: (1) retaliationfor participating in the GenNET lawsuit, which has already been discussed, and (2) retaliation for participating in the school’s investigation regarding plain tiff’s continued employment.

Contrary to plaintiff’s argument , she never alleged that she w as fired for her participation in the school’s investigation in to her continued employment. R ather, she alleged that she was terminated because of the way she participated in the present a ction—a claim that was dismissed by the trial court and which is not contested on appeal. Plain tiff points to paragraph 43 of the Second Amended Complaint, which reads,

(43) That Defendant Hagel herse lf, in writing no less (!!), i n what can only be termed a smoki ng gun admission pursuant to MRE 801(d-2) , has admitted that one of the reasons Beverly Knox-Pipes’ employment was term inated was because of the way she participated in this very lawsuit, namel y, the way she answered interrogatories and the way she communicated, through her attorneys, with Defendant Hagel:

“Your responses to the initial inquires in October and November of 2011 as well as your discovery answers and statements provided by your attorney on July 24, 2012 entitled “Statement of Beverly Knox-Pipes” and your attorneys’ response on August 6, 2012 have all been considered by myself in renderi ng my recommendation.-8- Based upon my review of the evidence and your responses, it is my recommendation that your employment with Genesee Intermediate School District be terminated pursuant to the atta ched charges.”

It is clear that plaintiff never alleged that she was terminate d based on her mere participation in the investigation. Because plain tiff never specifically allege d a claim for retaliation based on her participation in the school’s inv estigation regarding her alleg ed misconduct, summary disposition was appropriate. 4

Additionally, even if plaintiff properly pleaded this claim, s he failed to establish a causal connection between her mere part icipation in the investigation and her termination. Based on Hagel’s statement that plaintiff cited, Hagel merely said that she considered plaintiff’s responses during the two meetings and the other information uncovered dur ing the internal investigation in deciding to terminate plaintiff. Hagel did not say that she fi red plaintiff because of her participation in the investigation. 5 Rather, it was plaintiff’s alleged wrongdoing uncovered during the investigation that led to her termination. See West , 469 Mich at 187 (“The fact that a plaintiff engages in a ‘protected activity’ under the Whistlebl owers’ Protection Act does not
immunize him from an otherwise l egitimate, or unrelated, advers e job action.”).

Finally, to allow a plaintiff to shield herself under the WPA from being terminated for participating in an investigati on regarding her own alleged mis conduct would undermine the purpose the of the WPA. “The underlying purpose of the act is the protection of the public.” Henry , 234 Mich App at 409. “ ‘The act meets this objective by prot ecting the whistleblowing employee and by removing barriers that may interdict employee e fforts to report violations or suspected violations of law.’ ” Id. , quoting Dolan v Continental Airlines/Continental Express

, 454 Mich 373, 378-379; 563 NW2d 23 (1997). “ ‘Without employee s who are willing to risk adverse employment consequences a s a result of whistleblowing a ctivities, the public would remain unaware of large-scale an d potentially dangerous abuses. ’ ” Id. , quoting Dolan , 454
Mich at 379.

Therefore, we hold that because plaintiff failed to establish a prima facie case under the WPA, the trial court erred by de nying defendants’ motion for su mmary disposition as to

4 Plaintiff argues that defendants never moved for summary dispo sition regarding this claim, and therefore, they waived it. However, defendants could not move for summary disposition on a claim that plaintiff never pleaded. Further, plaintiff never e ven addressed the alleged claim of retaliation for participating inthe school’s investigation unt il the hearing regarding both plaintiff and defendants’ motions for summary disposition. Plaintiff’s m otion for summary disposition focused on retaliation for filing this lawsuit and for particip ating in the GenNET lawsuit.

5 While “[t]he mere act of participating in the investigations i s itself protected activity,” Truel v
Dearborn , 291 Mich App 125, 139; 804 NW2d 744 (2010), plaintiff was sti ll required to show
that her termination was because of her mere participation in the investigation.-9- plaintiff’s Whistleblowers’ claim. Accordingly, we reverse the trial court’s order denying summary disposition for the Whistleblowers’ claim.

B. BREACH OF CONTRACT CLAIM

Next, defendants argue that the trial court erred by denying t heir motion for summary disposition as to the breach of contract claim. Again, we revi ew de novo a trial court’s decision on a motion for summary disposition. Hoffner , 492 Mich at 459. We also review de novo issues of contract interpretation, Hastings Mut Ins Co v Safety King, Inc , 286 Mich App 287, 291; 778 NW2d 275 (2009), and give the words used in the contract their plain and ordinary meanings. Coates v Bastian Bros, Inc , 276 Mich App 498, 503; 741 NW2d 539 (2007).

The contract at issue pr ovides in pertinent part,

It is further provided and agre ed that the Assistant Superinte ndent is subject to all rules, regulations and policies set forth by the Genesee Intermediate
School District and will exercise due propriety in the utilizat ion of school district properties and equipment. The Assistant Superintendent is proh ibited from engaging in conduct involving moral turpitude. The Board shall have the right to terminate the Assistant Superintendent and void this contract i f the Assistant Superintendent violates the prohibition from engaging in conduc t involving moral turpitude.

The parties agree that plainti ff could be terminated for condu ct involving moral turpitude. However, plaintiff argues that because the term was not defined , no legal obligation was created. Plaintiff fails to recognize th at although the contract does no t define moral turpitude, 6 “[d]ictionary definitions may be used to ascertain the plain an d ordinary meaning of terms undefined in an agreement.” Coates , 276 Mich App at 504. Black ’s Law Dictionary defines “moral turpitude” as “[c]onduct th at is contrary to justice, ho nesty, or morality. Black’s Law Dictionary (8th Ed). “Morality” means “conformity to the rules of right conduct; moral or
virtuous conduct.” Random House Webster’s College Dictionary ( 2001).

Additionally, the parties disagreed over whether plaintiff cou ld be fired for reasons other than moral turpitude. Plaintiff argued that, based on the cont ract, she could only be fired for conduct amounting to moral turpitude and nothing else. However , because plaintiff’s contract was for a definite term of employment, her employment was not a t will, but rather just cause. Rood v Gen Dynamics Corp , 444 Mich 107, 117; 507 NW2d 591 (1993). Accordingly, plainti ff could be terminated for just cause, which includes violations o f her employer’s rules. See
Toussaint v Blue Cross & Blue Shield of Mich , 408 Mich 579, 624; 292 NW2d 880 (1980). In fact, plaintiff’s contract speci fically provided, “It is furthe r provided and agreed that the Assistant Superintendent is subj ect to all rules, regulations a nd policies set forth by the Genesee Intermediate School District and will exercise due propriety in the utilization of school district

6 MCL 380.634(7), which requires an intermediate school board to include the moral turpitude
clause in a school administrato r’s contract, also does not defi ne “moral turpitude.”-10- properties and equipment.” Our Supreme Court has stated that “ [b]reach of the employer’s uniformly applied rules is a breach of the contract and cause f or discharge.” Id. at 624. However, “[i]n such a case, the question for the jury is whethe r the employer actually had a rule or policy and whether the employee was discharged for violating it.” Id. In this case, we conclude that there is a genuine issue of material fact whether plaintiff engaged in conduct involving moral turpitude and whether plaintiff was discharged for violating uniformly applied
rules.

For example, according to the Board’s resolution, one reason p laintiff was terminated was for providing Svitkovich a d istrict-paid cell phone when he was a nongovernment employee.
Plaintiff testified that the GIS D had done the same thing for t he superintendent that left before
Svitkovich. Plaintiff felt she h ad the authority to do so base d on the “culture” of the GISD and the Board policies. Specifical ly, Board Policy 7450, provided that nonemployees could borrow district-owned equipment “under special circumstance if authori zed by School Code or district policy.” The policy further states that department directors w ould decide whether and to whom the equipment would be loaned ba sed on administrative guideline s. Plaintiff, however, also acknowledged that Board Policy 7 530 indicates that district-own ed equipment should only be loaned under certain conditions and with the superintendent’s a pproval, which plaintiff did not obtain. However, plaintiff believed that the Board was in the process of revising their policies, and therefore, believed that she had authority under policy 745 0 to loan Svitkovich the cell phone. Further, Cindy McCain, the Assistant Superintendent of Business Services, testified that she had a conversation with plaintiff previously regarding whet her Svitkovich should have a cell phone. McCain told plaintiff that he should not because he is no longer an employee. Therefore, there was a genuine issue of mater ial fact as to defendants’ po licy regarding the lending of equipment to nonemployees, and whether violations of the policy provided just cause to terminate plaintiff.

The resolution also indicates that plaintiff was terminated fo r using taxpayer money, i.e., the district-paid cell phone, to further her extramarital affai r with Svitkovich. However, there was a genuine issue of fact wheth er the extramarital affair was ongoing while Svitkovich had the cell phone. The audit indicates that Svitkovich had the cell p hone from September 2010 to August 2011. Plaintiff claimed th at the affair began over 10 y ears prior and only lasted one year, but she saved some romantic voicemail messages from Svitkovich, some of which were from 2007, indicating that her claim was untrue. Nevertheless, ther e was no indication that any of those saved messages were from the period Svitkovich had the ce ll phone. Further, defendants noted that they found a prescription dated July 29, 2010 for Sv itkovich in plaintiff’s desk for paraffin, which is used to help a male achieve an erection. Al though this could certainly indicate the affair was ongoing in July 2010, the date also fell outside the timeframe Svitkovich had the cell phone. Defendants also noted that plaintiff had photos of her and Svitkovich in her desk; however, the photos show that the two had a close friendship an d they are not undeniably
indicative of a romantic relati onship. Finally, although the audit states that the volumes of calls between plaintiff and Svitkovich on the cell phone were excessi ve immediately following his retirement, this in and of itself does not create an inference that the two were romantically involved at the time, and plaintif f testified that she called h im to discuss GenNET and the GenNET lawsuit because he was very knowledgeable. Therefore, there is a genuine issue of material fact whether plaintiff used taxpayer money to further her extramarital affair to justify
her termination for conduct i nvolving moral turpitude.-11- Further, the Board terminated plaintiff for falsifying her eva luation. There was an email from Svitkovich to plaintiff in April 2011 that states, “The Ev aluation is a go, put it together and I will sign and date it.” Plaintiff testified that Svitkovich started the evaluation in 2010, and he never had a chance to complete it. She testified that Svitkovi ch dictated his portion of the evaluation, which she typed and then sent to him. Although he was no longer superintendent in April 2011, when the evaluation was drafted, plaintiff testifie d that the evaluation was for the 2009-2010 school year and did not have anything to do with the 2010-2011 school year, so that is why they both dated it for May 2010. Plaintiff testified th at the evaluation was given to Moorman and nothing was ever said when it was submitted to him. However, Hagel testified that plaintiff was the one who sent her evaluation to Human Res ources, and when Hagel discovered the email showing that plaintiff had drafted her own evaluation, she approached Moorman about it, and according to Hagel, Moorman was unsure wh y he received the evaluation and had planned to ask Hagel about it. Additionally, McCain te stified that Svitkovich did not evaluate any other administrators after he left. Given plainti ff’s testimony, however, there is a genuine issue of material fact whe ther the evaluation truly pro vided just cause for termination provided that Svitkovich dictated the evaluation and it only af fected the school year in which he was superintendent.

Another reason supporting plaintiff’s termination was her act of revealing confidential communications. Board Policy 835 0 prohibits the divulging of c onfidential information of the Board, “except to other employees who may need such information in connection with their duties and to authorized parties in accordance with proper departmental procedures.” Plaintiff admitted to forwarding communication from attorneys representin g the GISD in the GenNET lawsuit, and was aware of polic y 3210. However, she testified that the communication was not
marked confidential and did not i ndicate that it should not be forwarded. Given that it was electronic communication, she “did not feel that [she] was abus ing any confidential legal information.” Plaintiff testified that in her professional opi nion she felt it was appropriate to inquire with Svitkovich because he was superintendent emeritus and had the knowle dge base that would help the GISD and GenNET. Further, McCain was asked whet her she had an opinion on whether it was proper for plaintiff to forward attorney-client information, McCain testified that “we’ve been instructed by the Superintendent Tom Svitkovich that we couldn’t forward information outside of the organization from legal counsel.” H owever, contrary to what defendants argued, this does not i ndicate that this instruction was provided to plaintiff. Finally, Hagel testified that the Board documents plaintiff forwarded we re not confidential. She testified that they were summaries and updates of programs and initiative s the Board was working on. Hagel did not see this as a breach of confidentiality, just a b reach of mutual trust to keep Board information private. Therefore , there is a genuine issue of ma terial fact whether this amounted to moral turpitude or provided just cause to terminate plaintiff.

The Board also terminated plaintiff based on the audit’s revel ation of numerous discrepancies in plaintiff’s travel expenses. The audit stated that there were many times that the attendance system indicated that plaintiff was at work, but she remitted expenses for conference reimbursement for those same days. There were also instances w here plaintiff would arrive at the conferences early or stay late and would submit for reimbur sement. Larry Ford, a 40-year Board member, testified that it was common for Board members to arrive at the conference a day early, and if the conference ran late in the day, they would st ay a day later and fly home the next day. This was reimbursed by the GISD. Ford testified that Board members sometimes would-12- skip the conferences and go golfing, himself included. Ford te stified that the Board would have approved plaintiff’s conferences because it was required to app rove all travel, but it was the business office’s job to examine the expenses submitted for rei mbursement. Plaintiff also testified that if there were ever a problem with her expenses, the business office would have “kicked them back,” so if she was reimbursed, she assumed there was not a problem and that they were authorized. McCain, however, who ran the business of fice, testified that if the travel was approved by the superintende nt she “was directed to not be a blocker and process the payment.” Further, plaintiff was able to provide explanations for some of the travel discrepancies. Plaintiff also testified that some of the trave l that was shown as conferences was actually visitations that she di d to school districts in other states. Therefore, there is a question of fact whether plaintiff’s trav el was properly approved and re imbursed.

Finally, there was also an issue as to whether the policies in question were uniformly applied, which as noted in Toussaint , 408 Mich at 624, is a requirement when terminating a just cause employee for violating employer policies. For example, F ord testified at his deposition that he was on the Board for 40 years and to his knowledge, no one had been fired for having an
extramarital affair. There was an indication that a former Boa rd member divorced his wife to marry the woman that he had an extramarital affair with, who wa s also a GISD employee, and neither one of them was fired. Additionally, there were claims that plaintiff was using the GISD’s equipment, such as cell phone and computers, for her per sonal use, but there was evidence that other GISD emp loyees did this as well.

Therefore, when viewing the evidence in a light most favorable to plaintiff, there was a genuine issue of material fact whether plaintiff engaged in con duct involving moral turpitude and whether plaintiff was discharg ed for violating uniformly applie d rules as to warrant her termination. Accordingly, we affirm the trial court’s denial o f defendants’ motion for summary disposition in this regard.

III. MOTION FOR NEW TRIAL

Next, defendants argue that th e trial court erred by denying i ts motion for a new trial for
several reasons. We review for a n abuse of discretion a trial court’s decision to deny a motion
for a new trial. Shuler v Mich Physicians Mut Liability Co , 260 Mich App 492, 509; 679 NW2d 106 (2004).

A. COUNSEL MISCONDUCT

First, defendants argue that they should be granted a new tria l because the trial court allowed evidence of lack of prosecution. Although defendants a ttempt to frame their argument as one involving admittance of evidence, 7 defendants actually argue that plaintiff’s counsel

7 To the extent defendants argue that the trial court erred by a dmitting evidence of lack of prosecution, we deem this issue waived because defendants did n ot identify specific evidence it was challenging. Defendants may not assert an error and leave it to this Court to discover the
basis for the claim. Wysocki v Kivi , 248 Mich App 346, 360; 639 NW2d 572 (2001). However,-13- committed misconduct by repeatedly telling the jury during clos ing argument that the prosecutor determined that plaintiff did not commit a crime, and as such, was wrongfully terminated. Defendants argue that these rema rks were highly prejudicial and denied defendants a fair trial.

Initially, we reject plaintiff’ s argument that this issue was not properly preserved. Our Supreme Court has stated,

When reviewing an appeal asserting improper conduct of an atto rney, the appellate court should first det ermine whether or not the claim ed error was in fact error and, if so, whether it was harmless. If the claimed erro r was not harmless, the court must then ask if the error was properly preserved by objection and request for instruction or motion for mistrial. If the error i s so preserved, then there is a right to appellate review; if not, the court must st ill make one further inquiry. It must decide whether a new trial should nevertheles s be ordered because what occurred may have caused the result or played too large a part and may have denied a party a fair t rial. If the court cannot say that the result was not affected, then a new trial may be granted. Tainted verdicts ne ed not be allowed to stand simply because a lawyer or judge or both failed to protec t the interests of the prejudiced party by timely action. [ Reetz v Kinsman Marine Transit , 416 Mich 97, 102-103; 330 NW2d 638 (1982).]

The claims of misconduct occurr ed during closing argument and rebuttal. Defense counsel objected to the last set of statements made during rebu ttal. Specifically, the following exchange occurred:

He says maybe she stole, 76—76,000. Maybe she stole 50,000. Maybe she stole 40,000. He just said that. Well, maybe she stole ze ro. Zero. And in fact the prosecuting attorney says it is zero. She didn’t stea l anything. If she would have stole (sic) somethi ng it’s my job as prosecuting att orney—

[ Defense Counsel ]: I’m gonna object, your Honor.

[ Plaintiff’s Counsel ]: Huh?

[ Defense Counsel ]: These statements were not made from the prosecuting attorney. The fact that the pr osecuting attorney didn’t take any action is—

The Court : He didn’t say that. I—

[ Plaintiff’s Counsel ]: Well—but he didn’t prosecute.

The Court : That’s right.

we take this opportunity to cauti on the trial court on remand f or a new trial that “evidence of acquittal or lack of prosecution is highly prejudicial because it goes to the principal issue before the jury,” and because of the different burdens of proof, there is little or no probative value. Cook v Auto Club Ins Assoc (On Remand) , 217 Mich App 414, 417; 552 N W2d 661 (1996).-14- [ Plaintiff’s Counsel ]: I mean—

The Court : But there’s a big difference.

[ Plaintiff’s Counsel ]: He said—as Mr. Mullins had said maybe it was 76 grand, maybe it was 50 grand, maybe it was 40,000. And the pro secuting attorney looked at this and said there’s no crime. There’s no prosecuti on, period. End of story.

Although the trial court did not make a definitive ruling, it i s clear that the objection was
overruled based on the fact that plaintiff’s counsel continued on with his argument without interjection by t he trial court. 8 Accordingly, defendants prop erly preserved this issue. 9

With regard to the claims of misconduct, the first set of stat ements that were made during closing argument is as follows:

Two prosecuting attorneys; the first one said I know the peopl e involved in this. Dave Leyton and John Potbury said we’re not gonna han dle this. We’re going to avoid the appearance of conflict. So they shipped it over to Lapeer. Byron Konschuh—I don’t know Byron Konschuh. He was a prosecuti ng attorney. Now he’s a judge like Judge Fullerton over there in Lapeer. That’s who Brian—Byron Konschuh is. He looks at this—he hears the story. Same story she [sic] that she told you on direct. He rejected her story and h e rejects her book. 10 Oh, is she angry. Oh, is defendant Hagel angry. She issues a press release, you know. Well, I’m disappointed. I’m disappointed that you rejec ted my book. Byron Konschuch’s got some life learning. He’s no fool. You k now, he looked
at the book and sees she create d it. She created this book. S he’s not a CPA.

* * *

What’s the total amount of non-economic loss; emotional distre ss, mental anguish? Her reputation’s dest royed. I mean, she’s branded a thief and—she’s
not branded an adulterer. She’s branded a thief and embezzler. These are felony crimes. People do ten years. You know, there’s one guy in our county whose job—and every county’s got a prosecuting attorney. He’s got on e job; to prosecute crime. And $87,000.00 stolen is a crime. It’s a cri me in Genesee

8 Although Reetz states that counsel must also request an instruction, in this instance, such a request was futile given that the trial court overruled the obj ection.

9 Additionally, we note that defendants also moved for a new tri al based on the misconduct of plaintiff’s counsel during closi ng argument. Accordingly, this issue was raised before, and addressed by, the trial court, a nd therefore properly preserved

. Polkton Charter Twp v Pellegrom , 265 Mich App 88, 95; 693 NW2d 170 (2005).

10 “Book” refers to the P lante Moran audit.-15- County. It’s a crime in Lapeer C ounty. If it had really happe ned she’d have been prosecuted. And yet, she’s not prosecuted. He looks at the bo ok and he says there’s no crime her[e]. There’s no crime.

The second set of statements made during rebuttal includes:

And you know, incidentally, that book festooned with crimes an d such, why is it the prosecuting attorney didn’t prosecute? He looked at that book. He says, there’s no crime here. There’s not even one crime here. There’s one guy in every count[y] whose job is to prosecute crime. That’s the pro secuting attorney. That’s his only job. He doesn’t do divorces too. He doesn’t d o civil cases like this. He doesn’t do deeds and land contracts. He’s got one go al in life and that’s to prosecute crimes.

And Byron Konschuch, the prosecutor, listened to their story, looked at
their book and said there’s no crime here. Not even one crime I can prosecute.

* * *

He says maybe she stole, 76—76,000. Maybe she stole 50,000. Maybe she stole 40,000. He just said tha t. Well, maybe she stole ze ro. Zero. And in fact the prosecuting attorney s ays it is zero. She didn’t stea l anything. If she would have stole (sic) somethi ng it’s my job as prosecuting att orney—

We find that these arguments are improper. In the insurance r ealm, this Court has held that evidence of “lack of prosecu tion is not admissible in an i nsured’s suit against the insurer.” Cook (On Remand) , 217 Mich App at 417. The reason being that “ev idence of acqu ittal or lack of prosecution is highly prejudicial because it goes to the pri ncipal issue before the jury,” and because of the different burdens of proof, there is little or n o probative value. Id. at 418. Likewise, under these circumstances, it was improper for counse l to state that the prosecutor determined that there was no crime. Stating that there is no c rime is different from stating that the prosecution decided not to prosecute. There could still be a crime even though a prosecutor decides not to prosecute, particularly because of the different burdens of proof. In fact, this Court has stated that “a prosecutor’s decision to nolle prose may take into account many factors
irrelevant in a civil suit.” Id. (quotation marks and citation omitted).

Contrary to plaintiff’s argument, counsel was not arguing fact s in evidence. Plaintiff argues that the press release issu ed by the GISD that was admit ted at trial without objection showed that the prosecutor determined that there was no crime. Plaintiff specifically pointed to Hagel’s statement in the press r elease, in which she stated, “I would like to express my concern and displeasure over the failure to find criminal fault . . . While the prosecutor may not have felt
this could have b een proven beyond a reas onable doubt, that doe sn’t excuse the behavior of these two people.” This statement, how ever, does not state that the prosecutor himself stated that there was no crime, as counsel argued during closing argument. Rathe r, it is Hagel’s interpretation of the prosecutor’s decision not to pursue criminal charges. Beca use the prosecutor did not testify in this case, it was improper for counsel to argue that the pro secutor concluded that plaintiff did
not commit a crime.-16- We must next determine whether these improper arguments warrant reversal. An attorney’s misconduct at trial m ay necessitate a new trial whenthe misconduct “prejudice[s] the jury and divert[s] the jurors’ attention from the merits of the case.” Kern v St Luke’s Hosp , 404 Mich 339, 354; 273 NW2d 75 (1978). Our Supreme Court has state d,

“ ‘Counsel may, acting on their own judgment as to propriety a nd good taste, discuss the character of witnesses, the probability of t he truth of testimony given on the stand, and may, when there is any reasonable basis for it

, characterize testimony.’ [Citation omitted.]

“But where language is such as evinces a studied purpose to inflame or prejudice the jury, based upon facts not in the case , this Court has not hesitated to reverse.” 371 Mich 75, 78- 79. (Emphasis added.) [ Kern , 404 Mich at 353-354.]

See also Knight v Gulf & Western Props, Inc , 196 Mich App 119, 132-133; 492 NW2d 761 (1992); Wilson v Gen Motors Corp , 183 Mich App 21, 26; 454 NW2d 405 (1990) (“A lawyer’s comments usually will not be cause for reversal unless they ind icate a deliberate course of conduct aimed at preventing a fa ir and impartial trial[,]” or “ where counsel’s remarks were such as to deflect the jury’s attention from the issues involved and had a controlling influence upon the verdict.”). Further, an appellant is not required to “ ‘de monstrate affirmatively’ a prejudicial effect on the jury resulting from improper remarks of opposing counsel.” Wayne Co Bd of Rd
Comm’rs v GLS LeasCo , 394 Mich 126, 139; 229 NW2d 797 (1975). If the appellate court cannot say that the jury was not diverted from the merits of th e case or that the “mischief done” was cured by the trial court’s e fforts, then a new trial is req uired. Id.

We find that counsel’s improper arguments warrant reversal. A s discussed, counsel’s arguments were not based on facts in the case. The effect of c ounsel’s arguments was to convey to the jury that because the prosecutor determined that plainti ff did not commit a crime, the allegations leading to plaintiff’s termination had to be unsubs tantiated. This was repeated to good effect throughout closing argument. We believe that couns el’s persistence in stating that the prosecutor determined that plaintiff did not commit a crime shows a deliberate course of conduct aimed at preventing a fair trial and was such as to def lect the jury’s attention from the
issues involved in this case. As stated in Reetz , “when, as in this case, the theme is constantly repeated so that the error becomes indelibly impressed on the j uror’s consciousness, the error
becomes incurable and r equires reversal.” Reetz , 416 Mich at 111.

Additionally, we note that although the trial court provided a limiting instruction at the close of trial, it was insufficient to cure the prejudicial eff ect of counsel’s arguments. The trial court instructed the jury as follows:

Members of the jury, you have heard testimony that the plainti ff was not prosecuted criminally. In a criminal case the burden of proof is beyond a reasonable doubt. In a civil case, however, the burden of proo f is by a preponderance of the evidence. Beyond a reasonable doubt is a higher standard, higher burden than is preponde rance of the evidence.-17- This instruction, however, only e xplained the different burdens of proof and did not provide any context. At the very least, the trial court should have instru cted the jury that simply because the prosecutor chose not to prosecute plaintiff, does not mean that a crime had not been committed. Therefore, we conclude defendant s are entitled to a new trial f or the breach of contract claim.

Defendants also challenged counsel’s statement made during clo sing argument that “Well, Lisa Hagel’s not a lawyer. There is a lawyer up here wi th a robe. Judge Fullerton and she says yes, it is a whistleblower case. It’s a type two part icipating in court action. And she’s going to read you an instruction that says just that; just whatI’ve just told you.”

When read in context, it appear s that counsel was actually try ing to explain to the jury that defendants mistakenly classified the action as a type-one- whistleblower claim, when plaintiff was alleging that she w as a type two whistleblower. However, counsel took the argument a step too far by telling the jury that the judge hers elf said that “yes, it is a whistleblower case. It’s a type two participating in court act ion.” It could easily be inferred from that statement that the trial court determined that plaint iff had a valid claim and the jury
should render a verdict in her fa vor. This is improper, as “th e jury is the sole judge of the facts” and “[i]t is the function of the jury alone to listen to testim ony, weigh the evidence and decide the questions of fact.” People v Palmer , 392 Mich 370, 375; 220 NW2d 393 (1974). This statement, in essence, eliminated the jury’s role to be the sol e judge of whether plaintiff had a
valid whistleblower claim.

However, because defendants did not object to this statement a t trial, we must decide whether a new trial is warranted “because what occurred may hav e caused the result or played too large a part and may have denied a party a fair trial.” Reetz , 416 Mich at 103. Because we cannot say with confidence that this statement did not affect the verdict, especially when coupled with the improper arguments disc ussed earlier, we find that thi s error also warrants a new trial.
See Reetz , 416 Mich at 103 (“If the court cannot say that the result was not affected, then a new trial may be granted.”).

Next, defendants argue that plai ntiff’s counsel improperly ask ed the jury to place themselves in plaintiff’s position when he stated the following :

What we’re saying is that she participated in that GenNET laws uit and she got retaliated for it. Okay? That’s why she got terminated an d fired. And it’s just like if a juror, you know, had an employer and the employe r said I told you I didn’t want you to go to jury—I told you I didn’t want you to d o that service. We needed you here. You’re fired. That would be a type two whist leblower. That juror would be a type two whistle blower and it would be unlawfu l for the employer to do that. It would be unlawful for someone not to d o business with you, okay, because you served on a jury. You’d be a type two w histleblower like her. Okay? And you would be entitled to—to file a claim for a ll the losses you suffered. It’s unlawful to retaliate against you because you s at as jurors or she participated in a court action.

While appeals to the jury to sympathize with the plaintiff are improper, see People v

Watson , 245 Mich App 572, 591; 629 NW2d 411 (2001), when viewed in co ntext, counsel did-18- not appeal to the jury’s sympathy by asking them to place thems elves in plaintiff’s position. Rather, counsel was using the jury as an example to illustrate what a type two whistleblower is. Accordingly, we find that counsel ’s argument was not improper i n this regard.

Finally, defendants argue that they are entitled to a new tria l because counsel referred to
other Board members as “drunken sailors.” 11 Defendants argue that plaintiff’s counsel used this reference “dozens of times,” butthe transcript citations provi ded by defendants are inaccurate and only point to one reference. S pecifically, plaintiff’s counsel was questioning McCain about whether it was true that Clio Schools alleged in the GenNET law suit that GISD and GenNET were spending money “like drunke n sailors.” Defendants objecte d to the characterization, noting that the characterization was not in the complaint, and plainti ff’s counsel agreed to rephrase it. The objection was sufficient to cure the error in this regard, particularly where it was clear this was simply counsel’s characteriz ation, and the ju ry was instruc ted that the attorneys’ statements and questions were not evidence. See Guerrero v Smith , 280 Mich App 647, 658-659; 761 NW2d 723 (2008) (noting that objections and instructions may be sufficient to cure any prejudice arising from the remarks of counsel).

B. EVIDENCE OF SETTLEM ENT NEGOTIATIONS

Next, defendants argue that they are entitled to a new trial b ecause the trial court erred by allowing evidence of the resigna tion offer defendants provided to plaintiff before they sought her
termination. Defendants filed a motion in limine to exclude ev idence of the offer, which the trial
court denied. We review for an abuse of discretion a trial cou rt’s decision to deny a motion in
limine. Elezovic v Ford Motor Co , 472 Mich 408, 431; 697 NW2d 851 (2005).

The resignation offer was given to plaintiff at the November 2 011 meeting with Hagel in an effort to encourage plaintiff to resign quietly. Hagel test ified that it was only a draft. The offer provided that as part of pl aintiff’s resignation she woul d pay restitution to the GISD of $480 for misusing district telephone equipment. At the motion hearing to exclude the offer, plaintiff argued that the offer showed pretext, and was therefo re allowed under MRE 408. Specifically, plaintiff argued th at it proved Hagel’s motive an d intent because Hagel fired plaintiff, who was “a million dollar producer,” over $480 worth of cell phone charges. The trial court agreed, and denied defendants’ motion.

At trial, plaintiff’s counsel argued that the only grounds Hag el had to terminate plaintiff at the November 2011 meeting was the fact that she misused district telephone equipment worth $480, as evidenced by the resignation offer. Plaintiff’s couns el argued that because this was the only reason the GISD had to fire plaintiff, and plaintiff refus ed to accept the resignation offer based on that reason alone, Hagel had Plante Moran create the “ phony” audit to terminate plaintiff to avoid her giving te stimony in the GenNET lawsuit. On appeal, defendants argue that

11 Defendants attempt to assert this argument as an evidentiary i ssue, in that they cite this argument in support of their assert ion that the trial court err ed by allowing plaintiff to compare herself to other Board members who were not similarly situated. In context, however, this argument is actually a claim of counsel misconduct and will be addressed as such.-19- the offer was merely a draft, and the $480 figure was an initia l figure known at the time of the preliminary investigation when the offer was drafted, and in ac tuality, further investigation revealed that the cell phone given to the nonemployee cost the GISD more than $480. Defendants argue that MRE 408 excl udes evidence of the resignat ion offer.

MRE 408 provides,

Evidence of (1) furnishing or offering or promising to furnish , or (2) accepting or offering or promising to accept, a valuable consid eration in compromising or attempting to compromise a claim which was disp uted as to either validity or amount, is notadmissible to prove liabilityfor or invalidity of
the claim or its amount.

The rule “does not require exclusion when the evidence is offer ed for another purpose, such as proving bias or prejudice of a witness, negativing a contentionof undue delay, or proving an
effort to obstruct a criminal i nvestigation or prosecution.” M RE 408. Plaintiff argues that MRE 408 does not require exclusion because the offer was used to sh ow pretext, a purpose permitted by the rule. However, plaintiff used the resignation offer to prove that defendants did not have a legitimate business reason to terminate plaintiff, which direct ly relates to the validity of both the Whistleblowers’ and breach of contract claims. MRE 408 is spec ifically designed to exclude attempts to compromise that are used to prove liability for or invalidity of a claim. Therefore, the trial court abused its discretion by admitting evidence of the resignation offer.

We further find that the error affected defendants’ substantia l rights and was therefore not harmless. MRE 103. The purpose behind MRE 408 is to encourage compromise and settlement of disputes between parties. Chouman v Home Owners Ins Co , 293 Mich App 434, 438; 810 NW2d 88 (2011). The rule requires exclusion of evidence of com promise particularly because “settlements may be motivated by a great many possible consider ations unrelated to the
substantive merits of a claim.” Id. In this case, plaintiff used the resignation offer to continu ally argue that the only reason defendants fired plaintiff was for m isusing telephone equipment worth $480, which directly related to the substantive merits of her c laim. However, as Hagel testified, the $480 was not a reason for termination, the GISD was simply asking for restitution to make it whole again. At the time the resignation offer was presented, plaintiff was not being terminated, she was merely asked to resign because she provided a governmen t-paid cell phone to a nongovernment employee, which was against district policy. Nev ertheless, plaintiff repeatedly
used the inadmissible evidence to argue that the resignation of fer was proof that the only reason defendants had to terminate pla intiff was for misusing districttelephone equipment worth $480 and all other reasons provided fo r terminating plaintiff were c oncocted. This was highly prejudicial to defendants and warrants a new trial.

C. IRRELEVANT AND PREJUDICIAL EVIDENCE

Defendants also argue that they are entitled to a new trial be cause the trial court erred by allowing plaintiff to reference two former employees that had an affair and by allowing plaintiff to accuse the Board of spending money on porn, which was irrele vant and prejudici al evidence. However, defendants do not support this argument with citations to the record. Defendants did cite one page of the record relating to the porn accusation, bu t it is inaccurate. Defendants may-20- not assert an error and leave it to this Court to discover the basis for the claims. Wysocki , 248 Mich App at 360.

IV. OTHER CLAIMS OF ERROR

Finally, defendants also challenge the trial court’s denial of their motion for a JNOV regarding the Whistleblowers’ c laim, and its denial of their re quest for a remittitur. Given our
resolution of the issues earlier , these issues are moot and we decline to address them.

V. CONCLUSION

For the reasons discussed, we reverse the trial court’s denial of summary disposition for the Whistleblowers’ claim, and we reverse and remand to the tri al court for a new trial for the
breach of contract claim. Defe ndants, being the prevailing par ty, may tax costs pursuant to MCR
7.219. We do not retain jurisdiction.

/s/ Christopher M. Murray
/s/ Patrick M. Meter
/s/ Donald S. Owens