HECHT v NATIONAL HERITAGE ACADEMIES, INC

Docket No. 150616. Argued March 10, 2016 (Calendar No. 3). Decided July 26, 2016.

Craig Hecht brought an action in the Genesee Circuit Court alleging that his employment 

was terminated by National Heritage Academies, Inc., in violation of the Michigan Civil Rights 

Act (CRA), MCL 37.2101 et seq. Plaintiff had been employed as a teacher by defendant when 

he made racially charged comments. When later questioned about the comments by his 

supervisors, plaintiff provided inconsistent explanations. Plaintiff also allegedly attempted to

interfere with his supervisors’ investigation of the incident by asking a witness to change his 

statement about what had happened. Plaintiff was subsequently terminated. Plaintiff asserted 

that his attempts to find new employment as a teacher were hampered by defendant’s mandatory 

statutory disclosures to other schools of his record of unprofessional conduct. Before trial, 

defendant moved to preclude plaintiff from presenting evidence of the disclosures because the 

disclosures were required by MCL 380.1230b and a school employer that discloses information 

in good faith under the statute is immune from civil liability for the disclosure. The court, 

Geoffrey L. Neithercut, J., ruled that the evidence was admissible. Defendant moved for a 

directed verdict at the close of plaintiff’s case in chief, arguing that this was a disparate-treatment 

discrimination case and plaintiff had not shown that any of defendant’s other employees engaged 

in the same or similar conduct. The court denied the motion. The jury returned a verdict in 

favor of plaintiff, finding that he had proved that race was a factor in his termination, that he had 

shown $50,120 in past economic loss, and that he had shown $485,000 in future economic loss. 

Defendant moved for judgment notwithstanding the verdict (JNOV), a new trial, or remittitur. 

The court denied the motion. The Court of Appeals, SERVITTO, P.J., and CAVANAGH, J. 

(WILDER, J., dissenting), affirmed in an unpublished opinion. The Supreme Court granted 

defendant’s application for leave to appeal. 498 Mich 877 (2015).

In an opinion by Chief Justice YOUNG, joined by Justices MARKMAN, ZAHRA,

MCCORMACK (as to Parts I, II, and III), VIVIANO, BERNSTEIN (as to Parts I, II, and III), and 

LARSEN, the Supreme Court held:

In light of the circumstantial evidence presented and all the inferences that could have 

been reasonably drawn from that evidence in favor of the jury’s liability verdict, a reasonable 

jury could have concluded that defendant violated the CRA. However, because MCL 380.1230b 

afforded defendant complete immunity from civil liability flowing from the mandatory 

disclosures compelled by that statute, the trial court erred by allowing the jury to consider the 

Michigan Supreme Court

Lansing, Michigan

Syllabus Chief Justice:

Robert P. Young, Jr.

Justices:

Stephen J. Markman

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

Richard H. Bernstein

Joan L. Larsen

This syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader.

Reporter of Decisions:

Corbin R. Davis
disclosure evidence. Accordingly, the award of future damages had to be vacated and the case 

remanded for further proceedings.

1. When reviewing a motion for JNOV, an appellate court must construe all the evidence 

and the inferences arising from the evidence in the nonmoving party’s favor. If reasonable jurors 

could have honestly reached different conclusions, the jury verdict must stand. Under 

MCL 37.2202(1) of the CRA, an employer may not discharge or otherwise discriminate against 

an individual with respect to employment because of race. A claim under the CRA requires 

proof of “but for” causation. There are multiple ways to prove that a plaintiff was the victim of 

unlawful discrimination, including direct evidence of discrimination, i.e., evidence that proves 

impermissible discriminatory bias without additional inference or presumption. In this case, 

however, contrary to the conclusion of the Court of Appeals majority, defendant failed to present 

direct evidence of discrimination. One way of proving unlawful discrimination without direct 

evidence is by showing that the plaintiff was treated unequally to a similarly situated employee

who did not have the characteristic protected under the CRA. Thus, an employer’s differing 

treatment of employees who were similar to the plaintiff in all relevant respects, except for their 

race, can give rise to an inference of unlawful discrimination. In order for this type of evidence 

to give rise to such an inference, the similarly situated employee must be nearly identical to the 

plaintiff in all relevant respects. In this case, plaintiff presented a different kind of circumstantial 

evidence: circumstantial evidence that his employer considered his race in its decision to 

discharge him. Plaintiff argued that the black employees routinely engaged in racial banter, but 

were not disciplined. There were distinctions between the comments made by plaintiff and those 

made by defendant’s black employees that, if credited by the jury, might have allowed the jury to 

find for defendant. However, plaintiff presented additional evidence that defendant considered 

plaintiff’s race in terminating him. Specifically, plaintiff also presented evidence that 

defendant’s management employees were aware of and tolerated the unequal enforcement of

defendant’s stated zero-tolerance policy. The evidence, if believed, suggested that defendant’s 

management employees prohibited negative stereotyping in the workplace except when negative 

stereotyping comments were made by defendant’s black employees. The jury was thus shown 

the difference between defendant’s policy in theory and its racially biased application. This was 

potent circumstantial evidence of defendant’s allegedly racially biased decision-making. This 

evidence could have allowed a reasonable jury to conclude that defendant applied a different 

standard to plaintiff’s conduct based on his race. Accordingly, the jury could reasonably have 

found that race was a “but for” cause in defendant’s decision to investigate plaintiff and escalate 

punishment for his racial comments. Similarly, while defendant presented nondiscriminatory 

reasons for its decision to terminate plaintiff, plaintiff presented sufficient evidence for a 

reasonable juror to reject those race-neutral reasons as unbelievable. The jury’s verdict, finding 

a violation of the CRA, was supported by the totality of the evidence presented and the 

reasonable inferences in plaintiff’s favor that could be drawn from that evidence.

2. Generally, all relevant evidence is admissible, except as otherwise provided by the 

Constitution of the United States, the Constitution of the state of Michigan, the rules of evidence, 

or other rules adopted by the Supreme Court. Evidence may also be prohibited by statute. 

MCL 380.1230b provides that before hiring an applicant for employment, school employers

must request that the applicant sign a statement (1) authorizing the applicant’s current or former 

employer or employers to disclose to the school employer any unprofessional conduct by the 
applicant, and (2) releasing the current or former employer from any liability for providing that 

information. Before hiring an applicant for employment a school employer must request that the 

applicant’s current or prior employer provide information concerning the applicant’s 

unprofessional conduct, if any. After receiving such a request, a school employer must provide 

the information requested and make available to the requesting school employer copies of all 

documents in the employee’s personnel record relating to the unprofessional conduct. A school 

employer that discloses information in good faith under the statute is immune from civil liability 

for the disclosure. In this case, plaintiff argued that he was not precluded from presenting 

evidence of the mandatory disclosure because he did not sue for the disclosure itself—he sued 

for a violation of the CRA and presented evidence of the adverse impact of the disclosure to 

establish future damages. Plaintiff’s belief was that only a direct action for the disclosure, e.g., a 

defamation claim, was precluded by MCL 380.1230b(3), but the admission of evidence of the 

disclosures in a case such as this was permissible. The term “civil liability” is defined as being 

legally obligated for civil damages. The trial court’s decision to admit evidence and argument 

regarding the mandatory disclosures for the purpose of assessing damages allowed the jury to 

impose against defendant legal obligations arising from the disclosure. This violated the plain 

language of the statute. There can be no damages without liability. A legislative decision to 

preclude liability necessarily precludes damages on the same basis. There is no textual support 

for the view that immunity under the statute depends on the nature of the claim underlying the 

civil liability. The improper admission of the disclosure evidence tainted the jury’s future 

damages award, which had to be vacated. 

Court of Appeals judgment is affirmed to the extent it held that plaintiff presented 

sufficient circumstantial evidence to sustain the jury’s verdict finding that defendant violated the 

CRA; Court of Appeals judgment is reversed to the extent it held that the trial court properly 

admitted evidence of defendant’s mandatory disclosures of plaintiff’s unprofessional conduct; 

jury award of future damages is vacated; case is remanded to the trial court for further 

proceedings.

Justice MCCORMACK, joined by Justice BERNSTEIN, concurring in part and dissenting in 

part, agreed with the majority that plaintiff presented sufficient evidence of discrimination such 

that the trial court did not err by denying defendant’s motion for JNOV, but disagreed with the 

majority’s decision to vacate the jury award for future damages. MCL 380.1230b(3) confers 

immunity from liability, i.e., the state of being legally obligated for damages, “for the 

disclosure,” not from paying money as compensation for a state of legal responsibility unrelated 

to the disclosure. Because the statutory immunity is tied to the liability not the remedy, 

MCL 380.1230b(3) only precludes imposing liability (and damages flowing therefrom) on a 

defendant when the liability arises from an injury caused by the disclosure itself. Disclosing 

plaintiff’s unprofessional conduct did not create additional legal responsibility for which

defendant was on the hook; rather, it was the alleged illegal act of discharging plaintiff based on 

his race that gave rise to defendant’s liability. The injury from which the liability arose was the 

discriminatory discharge, not the disclosures. Introducing evidence of defendant’s disclosures of 

plaintiff’s conduct merely assisted the jury in determining the appropriate remedy for the 

discriminatory discharge. Because plaintiff’s injury was the discriminatory discharge rather than

defendant’s disclosures, and it was the discriminatory discharge for which defendant was held 
liable, the future damages award did not constitute civil liability for the disclosure, and the award 

of future damages should have been affirmed.

©2016 State of Michigan
FILED July 26, 2016

S T A T E O F M I C H I G A N

SUPREME COURT

CRAIG HECHT,

Plaintiff-Appellee,

v No. 150616

NATIONAL HERITAGE ACADEMIES, 

INC.,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH 

YOUNG, C.J. 

In this race discrimination case, we must decide whether the trial court erred by

denying defendant’s motion for judgment notwithstanding the verdict (JNOV), and 

determine the propriety of the admission of evidence of defendant’s mandatory reporting 

under MCL 380.1230b. We hold that the Court of Appeals did not err by affirming the 

trial court’s denial of defendant’s motion for JNOV on plaintiff’s claim of discrimination 

under the Civil Rights Act (CRA), MCL 37.2101 et seq. Contrary to the Court of 

Michigan Supreme Court

Lansing, Michigan

OPINION Chief Justice:

Robert P. Young, Jr.

Justices:

Stephen J. Markman

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

Richard H. Bernstein

Joan L. Larsen
2

Appeals, we conclude that there was no direct evidence of discriminatory animus

concerning the firing of plaintiff. This case turned on circumstantial evidence—on the 

credibility of plaintiff’s proofs that suggested there were racial reasons for his treatment 

and on the credibility of defendant’s nonracial justifications for firing him. We conclude, 

based on the evidence presented and all the inferences that could be reasonably drawn 

from that evidence in favor of the jury’s liability verdict, that a reasonable jury could 

have concluded that defendant violated the CRA. 

Finally, because MCL 380.1230b afforded defendant complete immunity from 

civil liability flowing from the mandatory disclosures compelled by this statute, we hold 

that the trial court erred by allowing the jury to consider evidence of defendant’s 

statutorily mandated disclosures of plaintiff’s wrongdoing to other schools, and the Court 

of Appeals erred by affirming the trial court’s decision in that regard. 

For these reasons, we reverse in part and affirm in part the judgment of the Court 

of Appeals, vacate the jury award for future damages, and remand to the trial court for 

further proceedings consistent with this opinion. 

I. FACTS AND PROCEDURAL HISTORY

Defendant, National Heritage Academies, Inc., is a company that owns and 

operates a number of public, independently operated schools, including Linden Charter 

Academy (LCA) located in Flint, Michigan. The student body at LCA is predominantly 

black. Plaintiff, Craig Hecht, is a white teacher who had been employed by defendant at 

LCA for approximately eight years, most recently serving as a third-grade teacher. 
3

We draw from the evidence adduced at trial the following narrative concerning the 

events that led to plaintiff’s termination. On November 3, 2009, Lisa Code, a white 

library aide at LCA, entered plaintiff’s classroom during class time to return a computer 

table she had borrowed. Upon her arrival, however, Code realized that she had brought 

back the wrong table—the one she borrowed was white, whereas the one she returned 

was brown. Noting her error, Code asked plaintiff if he would prefer to have a white 

table, like the one she borrowed, or the brown one she had returned. Plaintiff responded, 

“[Y]ou know I want a white table, white tables are better.” He continued, “[W]e can take 

all these brown tables and we can burn the brown tables.” Also present for this exchange 

was Floyd Bell, a black paraprofessional assigned to plaintiff’s classroom. After hearing 

plaintiff’s comments, Bell and Code both “called a foul” on plaintiff, in accordance with

the school’s informal procedures for addressing inappropriate personal conduct.

1

 

Plaintiff denied hearing either Bell or Code call a foul on him, but later acknowledged

that his comments were meant to imply that “white” people are better than “brown”

people.

 1 The Court of Appeals opinion explained the meaning of “fouls” within defendant’s 

professional conduct guidelines: 

LCA employees created a “social contract” with each other, such 

that if an individual stated something that someone else found offensive or 

inappropriate, the person offended was to “call a foul” on the speaker. In 

response, the speaker was to give two “ups” to the person who called the 

foul, which are positive statements about the person. In this instance, 

Plaintiff testified that he did not give any “ups” to either Bell or Code 

because he did not hear any foul called. [Hecht v Nat’l Heritage 

Academies, Inc, unpublished opinion per curiam of the Court of Appeals, 

issued October 28, 2014 (Docket No. 306870), p 1 n 1.]
4

Later that same day, Code reported the incident to Corrine Weaver, the dean of 

LCA. Weaver, in turn, reported the incident to her supervisor, Linda Caine-Smith,2 the 

principal of LCA, who initiated an investigation. Caine-Smith and Weaver each 

separately interviewed plaintiff, Bell, and Code and took written statements from all 

three. Although Code’s testimony at trial emphasized that plaintiff made the statements 

in front of a child, plaintiff’s counsel also elicited testimony from Code that her 

November 4th written statement did not include that allegation.3

 

When questioned, plaintiff provided varying explanations regarding what had 

happened. At first, plaintiff confirmed to Weaver the general discussion about white and 

brown tables, but he denied that he meant anything racial by his statements. The 

 2 Weaver and Caine-Smith are both white. 

3 [Plaintiff’s Counsel]: Where do you say [in your written statement]

that Mr. Hecht said something to a child?

[Code]: I didn’t, but then it must be—

[Plaintiff’s Counsel]: Oh, you testified today that Mr. Hecht said to a 

child, the whites—brown should burn, white’s better. That’s what you said 

today. But on November 4th, you didn’t say that, did you?

[Code]: No, I didn’t include that.

[Plaintiff’s Counsel]: You didn’t refer to communication is with 

children at all, did ya?

[Code]: No, not in this.

[Plaintiff’s Counsel]: You didn’t even state in here that a child had 

heard what Mr. Hecht said, correct?

[Code]: Right. Correct.
5

following day, plaintiff told Caine-Smith that he never said “brown should burn.” 

However, later that day, plaintiff sent Caine-Smith a written statement in which he 

admitted to saying, “white tables are better than brown tables” and “all brown tables 

should burn.” He also admitted that he involved a third-grade student in the “jok[e]” 

after he made the comments. Plaintiff subsequently met with Bell, apologized to him, 

and shook his hand.

At this point in the investigation, Caine-Smith contacted Courtney Unwin, 

defendant’s employee relations manager, to discuss plaintiff’s conduct and Caine-Smith’s 

belief that plaintiff had lied during their initial conversation regarding the incident. 

Unwin then spoke directly to plaintiff, who, despite the admissions made in his earlier 

written statement, told her that his remark was simply a “tasteless joke,” denied involving 

a student in the joke, and claimed that none of his students heard the exchange. Unwin

also claimed that plaintiff called her later that day and stated that he could not even 

remember saying anything about brown tables burning, and then justified his conduct by 

reference to racial banter he suggested was regularly engaged in by black teachers at 

LCA. Plaintiff claimed that he told Unwin he was just kidding around, that similar 

joking happened all the time at the school, and that he would do anything to make it 

better.

Caine-Smith and Unwin met to discuss plaintiff’s comments in the classroom and 

his versions of the incident. They discussed several disciplinary options, including a final 

written warning and termination. After that meeting, Caine-Smith called plaintiff to her 

office and told him he was being placed on immediate leave pending further 

investigation. Instead of leaving the building, plaintiff went into a room in which Bell 
6

was tutoring students. Plaintiff asked the students to leave the room so that he and Bell 

could speak privately. He then asked Bell to change the statement he gave defendant. 

Bell declined the request and explained that he would not lie for plaintiff.4

Plaintiff also tried to contact Code by calling both her home and cellular phones. 

Code did not answer either call, but plaintiff left a voicemail stating that he was 

“desperate” to speak to her. Code testified that plaintiff had never before tried to contact 

her. Code further testified that plaintiff never asked her to change her statement. 

The following day, Bell told Caine-Smith that plaintiff had asked him to lie. After 

receiving this information, Caine-Smith worried that plaintiff had similarly contacted 

Code. When asked, Code told Caine-Smith about the voicemail, causing Caine-Smith to 

consult with Unwin again. After their discussion, both Caine-Smith and Unwin 

determined that plaintiff was interfering with the investigation, and they decided to 

terminate plaintiff’s employment. Notably, while Unwin testified that she believed 

plaintiff’s intent was for Bell to lie, plaintiff’s counsel called attention to Unwin’s 

arguably contrary deposition testimony, in which she had previously testified that, to her 

 4 On cross-examination, Bell testified that the only way to change his statement would be 

to “mak[e] it a lie.” Nevertheless, Bell acknowledged that Hecht had apologized and that 

Bell had not included the apology in his statement, because he “didn’t think it was 

sincere . . . .” Bell admitted it was his opinion that plaintiff had asked him to lie and that 

plaintiff did not explicitly ask him to lie. Plaintiff’s counsel later argued to the jury that 

this evidence showed that plaintiff merely wanted Bell to include in his statement that 

plaintiff had apologized to him, not that plaintiff wanted Bell to lie.
7

knowledge, plaintiff did not ask anyone to lie.5 Plaintiff’s employment was terminated 

that day. Subsequently, plaintiff was replaced by a white woman hired by defendant.

After being fired from LCA, plaintiff began taking substitute teaching jobs, while 

simultaneously applying for long-term, full-time employment as a teacher. Plaintiff 

testified that every time he got close to securing such employment, the prospective 

employer would request his employment record from defendant, as required by law,6 and, 

also as required by law,7 defendant disclosed the fact that plaintiff was fired for his

racially insensitive comments and his conduct during the investigation. Plaintiff testified 

that, because of these disclosures, he was unable to obtain full-time employment as a 

teacher. Plaintiff eventually obtained a nonteaching job as a machine operator, making

approximately $14 per hour—considerably less than his salary with defendant.8

 5 When asked if plaintiff did anything to Code to obstruct the investigation, she answered, 

“Not to me, no.”

6 See MCL 380.1230b(2) (“Before hiring an applicant for employment, a school district, 

local act school district, public school academy, intermediate school district, or nonpublic 

school shall request at least the applicant’s current employer or, if the applicant is not 

currently employed, the applicant’s immediately previous employer to provide the 

information described in [MCL 380.1230b(1)(a), regarding unprofessional conduct], if 

any.”) (emphasis added). 

7 MCL 380.1230b(3) (“Not later than 20 business days after receiving a request under 

subsection (2), an employer shall provide the information requested and make available 

to the requesting school district, local act school district, public school academy, 

intermediate school district, or nonpublic school copies of all documents in the 

employee’s personnel record relating to the unprofessional conduct.”) (emphasis added). 

8 At trial, there was conflicting testimony regarding plaintiff’s claim that he was denied 

subsequent teaching employment solely or predominantly because of the statutorily 

mandated disclosure of his “unprofessional conduct.” In fact, during cross-examination, 

plaintiff admitted that he likely would have obtained a position as a long-term substitute 
8

In February 2010, plaintiff filed a complaint in the Genesee Circuit Court, alleging 

that defendant terminated his employment based on his race in violation of the CRA. 

Defendant moved for summary disposition arguing, among other things, that it had 

legitimate nondiscriminatory reasons for firing plaintiff and that his misconduct was not 

“similar” to that of any other employee. The motion was denied by the trial court.

Defendant does not challenge the denial of summary disposition in this appeal.

Before trial, defendant moved, in limine, to preclude plaintiff from presenting 

evidence of its mandatory disclosure of plaintiff’s unprofessional conduct to other 

schools. Defendant argued that the disclosures were required by law, pursuant to MCL 

380.1230b, and that the same statutory provision immunized the disclosing school from 

civil liability for the disclosures. On this basis, defendant argued that plaintiff should be 

precluded from admitting these disclosures or other information related to them as 

evidence to establish civil liability. 

Plaintiff countered, arguing that the statute only shielded defendant from liability

stemming directly from the disclosure, such as when a plaintiff sues for defamation. 

Plaintiff claimed that he was seeking to use the disclosures for a different purpose: not to 

establish liability for defamation, but to establish his future damages resulting from the 

alleged employment discrimination because the disclosures to prospective school 

employers precluded him from obtaining another teaching position. The trial court ruled 

 

teacher had he not failed a drug test because it revealed the presence of unprescribed pain 

medication he received from his mother-in-law. Regardless of the actual cause of his 

difficulty in finding a teaching job, evidence of the statutorily mandated disclosures was 

presented to the jury as a cause of plaintiff’s inability to obtain a teaching position. 
9

that it would not limit the presentation of this disclosure evidence at trial, but it would 

consider jury instructions explaining the ways in which the evidence could be used.

At trial, plaintiff attempted to prove his CRA claim by establishing that the 

defendant applied different rules to white and black employees who engaged in racial 

banter: black employees were permitted to engage in such conduct without being reported 

or investigated, while plaintiff, a white employee, was subject to disciplinary 

investigation and escalation of punishment. Several witnesses testified about this issue. 

One of these witnesses, Unwin, the LCA employee relations manager who was 

consulted on what course of action should be taken with plaintiff because of his racial 

comments and subsequent conduct during the investigation of those comments, testified 

that LCA had essentially a “zero tolerance” policy prohibiting any expression of negative 

racial “stereotyping” in the workplace. Under the LCA antidiscrimination policy, it was 

mandatory that any such racial remarks be reported and investigated.

The testimony of defendant’s other managers involved in investigating and 

disciplining plaintiff permitted the jury to reach the conclusion that defendant’s policy 

was applied differently depending on the race of the employee involved. Weaver 

testified that, a few days before plaintiff was fired, she reminded her supervisor CaineSmith that racial banter happens among black employees without consequence. Weaver 

testified that Caine-Smith acknowledged that fact and acquiesced in the differential racial

application of the policy. By contrast, Caine-Smith, on cross-examination, contradicted 

Weaver, testifying that she never had this conversation with Weaver.

Additionally, Weaver testified about other instances of “racial banter” that had 

occurred at LCA in which she was the target of negative racial stereotyping comments 
10

from black employees. Weaver recalled that one time, Tim Jones, a black employee at 

LCA, made a negative racially stereotyping remark to her. This incident occurred when 

approximately 70 to 75 teachers and employees of defendant were on a bus ride back 

from a professional development meeting. Weaver stated that she was going to make 

fried pork chops for dinner, and Tim Jones responded by asking, “ ‘[W]hy would you be 

making pork chops; you’re white?’ ” Weaver did not report the incident, but testified that 

she called a foul on Jones. He faced no formal discipline for his comment. 

Weaver also testified about an incident involving Kevelin Jones, another black

employee of defendant. Weaver testified, “Well there was one time we had the Black 

History month and did the soul food thing; and Mr. [Kevelin] Jones made a comment to

me about not eating it because I was white[.]” Weaver testified that she called a foul on 

Kevelin Jones, but that he also received no other punishment for his racial comment. 

Additionally, Weaver noted that she heard the “ ‘n’ word” used by defendant’s 

employees “[a] couple of times,” and racial banter occurred regularly among her 

coworkers. None of this behavior resulted in reporting, investigation, or discipline. 

Moreover, Weaver admitted during questioning by plaintiff’s counsel, as well as in her 

written statement, that she did not think plaintiff meant his comment to be racist. In 

addition, Weaver testified that when she first heard of the comment reported by Code, she 

also thought that it must have been a joke.

Plaintiff also testified during his case in chief and noted two additional instances

of inappropriate racial commentary by black employees in the workplace. The first 

instance involved a black secretary at LCA, who called a student to accompany her by 

yelling, “ ‘hey, come here light skinned.’ ” The other instance involved a black employee 
11

stating that a school mural of the children’s cartoon character “Dora the Explorer” should 

be named “ ‘Laquisha,’ ” not “ ‘Dora,’ ” because the paint color used for her skin was so 

dark. 

Plaintiff then testified regarding his posttermination difficulty in finding teaching 

employment. He noted that he had obtained long-term substitute teaching positions, but 

every time the school “caught wind” of the details of his firing because of the mandatory 

disclosure form defendant sent to each school, he was quickly let go. 

At the conclusion of plaintiff’s case in chief, defendant moved for a directed 

verdict, arguing that plaintiff had not shown that any other LCA teacher, or even any of 

defendant’s employees, ever engaged in the same or similar conduct. In fact, defendant 

argued, plaintiff even admitted that he was aware of no other instance of a teacher 

making a racial or racist remark in a classroom in the presence of children. Plaintiff 

responded by noting the testimony showing black employees made racial jokes but faced 

no discipline whatsoever. Plaintiff also cited the statement attributed to Caine-Smith 

regarding the rules about racial banter being different for black employees. Defendant 

repeated that the only instances of racial conduct that plaintiff could point to did not 

occur in front of children and, therefore, plaintiff was not similarly situated to those 

employees. The trial court agreed with plaintiff and held that there were “a whole bunch 

of similarly situated educators” and, taking the evidence in the light most favorable to the 

nonmoving party, denied defendant’s motion.9

 9 As discussed later in this opinion, defendant did not adequately present the issue of the 

trial court’s denial of its motion for directed verdict in the Court of Appeals and, thus, 
12

Plaintiff then argued as follows in closing:

This man and his little family have groaned with the anguish of what 

happened here. Every time he tries to get on his feet, they kick him back 

down again with these [mandatory disclosures]. Every time he gets on his 

feet, they kick him back down. He gets a substitute teaching job at 

Flushing; and, after a short time there, they knock on his door and tell him, 

you can’t teach here any more because of the [mandatory disclosure], what 

it said about you; you can’t teach here any more.

[10]

After deliberating, the jury returned a verdict in favor of plaintiff. On the verdict 

form, the jury found that plaintiff had proved that race was a factor in his termination and 

that plaintiff had shown $50,120 in past economic loss and $485,000 in future economic 

loss. The jury also found that plaintiff suffered emotional distress caused by his 

termination, but awarded nothing on that claim.

Shortly thereafter, defendant filed a motion for JNOV, a new trial, or remittitur. In 

its motion for JNOV, defendant asserted that plaintiff failed to present sufficient evidence 

to support his claim under the CRA. Defendant also argued that it was entitled to a new 

trial because the admission of evidence of the mandatory disclosures, despite the 

immunity granted by law, was inconsistent with substantial justice, and that the jury’s 

verdict for future damages was unsupported by the evidence presented at trial. The trial 

court denied defendant’s motion. 

 

failed to preserve the issue for review by this Court.

10 Emphasis added. 
13

Defendant appealed in the Court of Appeals, which affirmed the trial court 

judgment in a split, unpublished opinion.

11 The majority held that plaintiff had presented 

sufficient direct evidence of discrimination, in the form of Caine-Smith’s statement to 

Weaver.12 Additionally, the majority held that the McDonnell Douglas13 burden-shifting 

approach is inapplicable on appellate review, not only where, as here, direct evidence is 

offered, but also in general once the matter has been decided by a jury.14 The majority 

further held that, even if McDonnell Douglas were applicable, plaintiff had presented 

sufficient circumstantial evidence to prevail under the McDonnell Douglas framework.15 

Finally, the majority held that the trial court did not err by allowing the presentation of 

evidence of defendant’s mandatory disclosures to the jury.16 

In dissent, Judge WILDER would have held that plaintiff failed to present any 

direct evidence of discrimination.

17 The majority and dissent differed in their 

 11 Hecht, unpub op at 1. 

12 Id., at 3-5. The panel relied on testimony from Weaver’s deposition that was read into 

the record at trial. There was actually stronger testimony by Weaver, which we use in 

this opinion, that the Court of Appeals panel overlooked.

13 McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973).

14 Hecht, unpub op at 5.

15 Id. at 6-7. The Court of Appeals determined that plaintiff had presented sufficient 

evidence that he was treated differently than black employees who had made racial 

remarks, but were not punished. Id. 

16 Id. at 7-9.

17 Id. (WILDER, J., dissenting), at 2.
14

understanding of a critical portion of Weaver’s testimony. In that testimony, Weaver 

stated that Caine-Smith conveyed a message with the “ ‘point . . . that [racial banter]

happens amongst African Americans and it’s not the other way around[.]’ ” The dissent 

rejected the majority position that this statement was direct evidence of discrimination 

because it required an inference to prove the existence of Caine-Smith’s discriminatory 

intent, and it could plausibly be interpreted as either discriminatory or benign.18 The 

dissent also would have concluded that plaintiff could not prove a circumstantial case of 

discrimination because, even assuming plaintiff could establish a prima facie case as 

required by McDonnell Douglas, defendant clearly rebutted the inference of 

discrimination with legitimate reasons for plaintiff’s discharge from employment.19

Defendant filed an application for leave to appeal the Court of Appeals decision. 

This Court granted leave to appeal, asking the parties to address

whether the Court of Appeals erred: (1) when it found sufficient direct 

evidence of racial discrimination on the basis of a witness’s interpretation 

or understanding of what the defendant’s representative said to her; (2) 

when it concluded that the burden-shifting analysis of McDonnell Douglas 

Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), was not 

applicable and that there was sufficient circumstantial evidence that the 

plaintiff was similarly situated to African-American employees who had 

made race-based remarks in the past; and (3) when it held that the trial 

court did not abuse its discretion in admitting evidence of the defendant 

employer’s disclosures, which were mandated by MCL 380.1230b, to the 

plaintiff’s prospective employers.[20]

 18 Id. at 2-5.

19 Id. at 5-6. The dissent did not address MCL 380.1230b. 

20 Hecht v Nat’l Heritage Academies, Inc, 498 Mich 877 (2015). 
15

II. STANDARD OF REVIEW

This Court reviews de novo a trial court’s decisions regarding motions for 

JNOV.21 “The appellate court is to review the evidence and all legitimate inferences in 

the light most favorable to the nonmoving party. Only if the evidence so viewed fails to 

establish a claim as a matter of law, should the motion be granted.”22 Issues relating to 

the admission of evidence are reviewed for an abuse of discretion.23 An abuse of 

discretion generally occurs only when the trial court’s decision is outside the range of 

reasonable and principled outcomes,24 but a court also necessarily abuses its discretion by

admitting evidence that is inadmissible as a matter of law.25 Statutory interpretation is a 

question of law that we review de novo.26

III. CIVIL RIGHTS ACT

This Court must determine whether the trial court erred by denying defendant’s 

motion for JNOV,

27 that is, we must determine whether plaintiff presented sufficient 

 21 Sniecinski v Blue Cross & Blue Shield of Mich, 469 Mich 124, 131; 666 NW2d 186 

(2003). 

22 Wilkinson v Lee, 463 Mich 388, 391; 617 NW2d 305 (2000). 

23 Craig v Oakwood Hosp, 471 Mich 67, 76; 684 NW2d 296 (2004). 

24 Saffian v Simmons, 477 Mich 8, 12; 727 NW2d 132 (2007).

25 Craig, 471 Mich at 76. 

26 Koontz v Ameritech Servs, Inc, 466 Mich 304, 309; 645 NW2d 34 (2002). 

27 Despite defendant’s current arguments before this Court regarding the trial court’s 

denial of its motion for directed verdict, we agree with the Court of Appeals majority that 

defendant did not appeal in that Court the denial of its motion for directed verdict. The 

phrase “directed verdict” was mentioned only four times in defendant’s Court of Appeals 
16

evidence to support a jury verdict finding employment discrimination. Again, in 

reviewing a motion for JNOV we must construe all evidence and inferences from the 

evidence in the nonmoving party’s favor,

28 and, “[i]f reasonable jurors could have 

honestly reached different conclusions, the jury verdict must stand.”29 To make this 

 

brief and those references were cursory. These cursory statements did not adequately 

present for review the denial of the motion for directed verdict, particularly given that 

defendant filed its claim of appeal in the Court of Appeals “from the verdict returned on 

July 15, 2011, the Judgment entered on August 8, 2011, the Order Awarding Attorney 

Fees and Costs to Plaintiff entered on August 18, 2011, and the Order Denying 

Defendant’s Motion [f]or JNOV, New Trial, or in the Alternative, Remittitur . . . .” This 

failure to mention the denial of its motion for directed verdict in its claim of appeal in the 

Court of Appeals was significant given the cursory references to the issue in defendant’s 

Court of Appeals appellate brief. In its application for leave to appeal in this Court, 

defendant claims that it had “argued that the trial court erred by denying its motion for 

directed verdict and its JNOV motion.” Defendant does not provide any support for this 

assertion beyond noting that the dissenting Court of Appeals judge “disagreed that 

[defendant] was not appealing the trial court’s denial of its directed motion verdict [sic] 

in addition to the denial of its JNOV motion,” and that “the standard of review for both 

was the same.” This is insufficient to adequately present the directed verdict issue in this 

Court. See Goolsby v Detroit, 419 Mich 651, 655 n 1; 358 NW2d 856 (1984). Because 

the issue is not properly before us, we will not address defendant’s directed verdict 

claims.

28 Wilkinson, 463 Mich at 391.

29 Morinelli v Provident Life & Accident Ins Co, 242 Mich App 255, 260-261; 617 NW2d 

777 (2000). In other words, unless a plaintiff’s case is wholly lacking evidence on an 

element of a claim, the jury is allowed to make reasonable inferences from the evidence 

and make credibility determinations. This is entirely consistent with our canon that 

credibility determinations lie solely with the trier of fact. See Moll v Abbot Laboratories, 

444 Mich 1, 47; 506 NW2d 816 (1993) (LEVIN J., dissenting) (“It is well settled as a 

matter of both Michigan and federal civil procedure that it is for the trier of fact, 

generally the jury, to decide where reasonable persons can draw different inferences from 

undisputed facts.”); Vandenberg v Prosek, 335 Mich 382, 386; 56 NW2d 227 (1953) 

(“The weight that is to be given to the testimony of the witnesses is largely a matter to be 

left to the judgment of the jurors. While some of the witnesses’ testimony, if believed, 

would indicate that plaintiff had been contributorily negligent, the jurors might give this 
17

assessment, we must determine what a plaintiff is required to prove in an employment 

discrimination case. 

MCL 37.2202(1) of the CRA provides:

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 . . . race . . . .

[30]

The ultimate question in an employment discrimination case is whether the plaintiff was 

the victim of intentional discrimination.31 In our caselaw, we have interpreted the CRA 

to require “ ‘but for causation’ or ‘causation in fact.’ ”32 We reaffirm that construction 

here. 

There are multiple ways to prove that a plaintiff was the victim of unlawful 

discrimination. Direct evidence of intentional discrimination is a sure but rare method of 

challenging an employer’s decision.33 In this case, plaintiff did not have direct evidence 

 

testimony such credence as they found it should have, under the circumstances, and in 

view of testimony to the contrary as to the essential facts.”).

30 Emphasis added. “MCL 37.2202(1)(a) draws no distinctions between ‘individual’ 

plaintiffs on account of race.” Lind v Battle Creek, 470 Mich 230, 232; 681 NW2d 334 

(2004).

31 Reeves v Sanderson Plumbing Prod, Inc, 530 US 133, 153; 120 S Ct 2097; 147 L Ed 

2d 105 (2000). 

32 Matras v Amoco Oil Co, 424 Mich 675, 682; 385 NW2d 586 (1986).

33 The rarity of direct evidence in discrimination cases is one justification Courts have 

offered for the creation of the McDonnell Douglas paradigm. See, e.g., Hazle v Ford 

Motor Co, 464 Mich 456, 462; 628 NW2d 515 (2001) (“In many cases . . . no direct 
18

of discrimination.34 But there remain multiple ways of proving the ultimate question of 

 

evidence of impermissible bias can be located.”); US Postal Serv Bd of Governors v 

Aikens, 460 US 711, 716; 103 S Ct 1478; 75 L Ed 2d 403 (1983) (“There will seldom be 

‘eyewitness’ testimony as to the employer’s mental processes.”); Kline v Tennessee 

Valley Auth, 128 F3d 337, 348 (CA 6, 1997) (“It is the rare situation when direct

evidence of discrimination is readily available, thus victims of employment

discrimination are permitted to establish their cases through inferential and circumstantial 

proof.”).

34 Perhaps the best general definition of direct evidence is that it is evidence that proves 

impermissible discriminatory bias without additional inference or presumption. See 

Hazle, 464 Mich at 462. Nor did Caine-Smith’s statement have all of the hallmarks that 

surrounded the statement in DeBrow v Century 21 Great Lakes, Inc (After Remand), 463 

Mich 534, 538; 620 NW2d 836 (2001)—a statement made by a decision-maker, to the 

plaintiff, at the meeting in which the plaintiff suffered the adverse employment decision, 

and evincing a causal nexus (stating the plaintiff was “ ‘getting too old for this s[***]’ ”). 

(Emphasis added.) 

Whether Weaver’s testimony about Caine-Smith’s acknowledgement of the 

unequal application of defendant’s antidiscrimination workplace policies constituted 

direct evidence of discrimination was a point of major dispute between the Court of 

Appeals majority and dissent. The majority erred by relying on the wrong section of 

Weaver’s testimony, wherein Weaver seemed to be speculating about Caine-Smith’s 

view that it was acceptable to give black employees engaging in prohibited racial banter a 

pass under the defendant’s antidiscrimination polices. Weaver testified that she thought

Caine-Smith’s “ ‘point was that it happens amongst African Americans and it’s not the 

other way around; and that this one was reported. Someone was offended and we had an 

obligation to follow up on it.’ ” That kind of speculative testimony about motivation may 

be circumstantial evidence but it is never direct evidence of motivation because, as Judge 

WILDER explained in his dissent, Weaver’s testimony about what she believed CaineSmith meant “is not direct evidence of discrimination because it did not recount an actual 

statement by Caine-Smith.” Hecht (WILDER, J., dissenting), unpub op at 3. In other 

words, Weaver was merely making an inference about what Caine-Smith intended to 

convey to Weaver but Caine-Smith’s actual words were not provided to the jury in this 

exchange. To our knowledge, no court has accepted such speculative testimony as direct 

evidence of discrimination.

We conclude that even the Weaver testimony quoted later in this opinion (in 
19

discrimination in a circumstantial evidence case.35 A plaintiff can attempt to prove

discrimination by showing that the plaintiff was treated unequally to a similarly situated 

employee who did not have the protected characteristic.36 An employer’s differing 

treatment of employees who were similar to the plaintiff in all relevant respects, except 

for their race, can give rise to an inference of unlawful discrimination.

37 In order for this 

type of “similarly situated” evidence alone to give rise to such an inference, however, our 

cases have held that the “comparable” employees must be “nearly identical” to the 

plaintiff in all relevant respects.38 

Plaintiff argues that he was treated differently than similarly situated black

employees at the school. He argues that the black employees routinely engaged in racial 

banter, but were not disciplined. Yet he was fired for what he claims is nearly identical 

conduct—telling a racially charged joke. If this were the entirety of plaintiff’s case, we 

question whether it would be sufficient to sustain the verdict. Defendant points out 

several factors that arguably distinguish plaintiff’s conduct from that of other employees, 

 

which Weaver testified that Caine-Smith said, “ ‘It [the prohibited racial banter] happens 

among African-Americans and it’s not the other way around’ ”) does not constitute direct 

evidence of racial bias. The Weaver testimony is, however, potent circumstantial 

evidence of the employer’s potential racially biased decision-making, and ultimately, we 

conclude that there is sufficient circumstantial evidence to sustain this verdict.

35 Matras, 424 Mich at 683-684. 

36 Town v Mich Bell Tel Co, 455 Mich 688, 695; 568 NW2d 64 (1997) (opinion by 

BRICKLEY, J.).

37 Id. at 695-696.

38 Id. at 699-700.
20

notably that plaintiff’s joke was told in a classroom full of students, which certainly 

raised the prospect that they might hear it, regardless of whether they actually did. 

We need not decide this question, however, because the jury was not left with only 

this evidence from which to draw the inference that race was the “but for” cause of

plaintiff’s discharge. Defendant errs when it suggests that there are only two ways in 

which a plaintiff may meet its ultimate burden of demonstrating circumstances from 

which the fact-finder could conclude that race discrimination occurred: by proving that 

the plaintiff was replaced by a person of another race or by using the “similarly situated” 

method. A plaintiff is not so limited.

As stated earlier, during trial, the jury was presented with testimony from both

Unwin and Caine-Smith about defendant’s employee conduct practices. Caine-Smith 

testified that defendant’s employee handbook precluded “inappropriate business conduct, 

which includes gambling, abusive profanity or threatening language, insubordination, or 

violation of discrimination or harassment policy, misuse of confidential information,

conducting personal business during work time, excessive absenteeism or tardiness, 

showing disrespect for co-workers, improper use of [defendant’s] technology or

[defendant’s other] resources.”39 Unwin noted that defendant also had a workplace 

harassment policy, which stated that defendant was “committed to providing a work 

environment that’s free from discrimination and unlawful harassment.” Prohibited forms 

of harassment included any “verbal or physical conduct that insults or shows hostility or 

 39 Emphasis added. 
21

aversion toward an individual because of his or her race or color or any other legally 

protected characteristic.” She highlighted that examples of harassing conduct include, 

but are not limited to, “epithets, slurs, [and] negative stereotyping.” Further, Unwin 

stated that the school’s zero-tolerance policy required anyone who sees any such

misconduct to “immediately notify [his or her] manager,” and that “[a]nyone engaging 

in . . . unlawful harassment will be subject to . . . disciplinary action up to and including 

termination from employment.”40 

Thus, defendant provided a nondiscriminatory rationale for disciplining plaintiff: 

violation of the school’s employment policies. Despite these exacting rules dictating how 

harassing speech and negative racial stereotyping comments must be handled under 

defendant’s policies, the jury was also presented with evidence that the rules were not 

strictly applied to black employees engaged in such prohibited conduct. Weaver, herself, 

testified that she was the subject of racial banter that could easily be described as 

“negative stereotyping” from black employees on multiple occasions, as well as having 

heard black employees use the “ ‘n’ word” during her tenure at LCA. However, if there 

really were a zero-tolerance policy, the jury might well have thought it suspicious that 

none of those incidents involving black employees led her to follow the mandatory 

reporting requirement of defendant’s policy, and none resulted in any escalation of 

punishment as occurred with plaintiff’s violation. 

 40 Quotation marks omitted. 
22

The inference that black employees were excepted from enforcement of 

defendant’s harassment policies could reasonably have been bolstered by plaintiff’s 

testimony. Plaintiff testified that he heard one employee make a racially charged joke 

about a children’s cartoon character41 and another employee call a student to her side by 

saying “ ‘hey, come here light skinned.’ ” None of these instances of harassing conduct 

was ever met with reporting, investigation, or punishment by defendant.42 And yet, when 

plaintiff engaged in conduct violative of defendant’s policies, his misconduct was 

immediately reported and investigated, and plaintiff was ultimately terminated.

43 

Particularly significant in this case, the jury was provided with evidence from 

which it could reasonably conclude that defendant’s own management decision-makers 

 41 Plaintiff’s testimony was corroborated by the testimony of that employee, Clarence 

Scott, a black employee, who admitted that he made this racially charged joke in front of 

numerous employees. 

42 It is true that plaintiff did not himself report these incidents, and defendant might, 

perhaps justifiably, take umbrage at plaintiff seeking to hold it accountable for episodes 

that it might not have known about because plaintiff himself did not report them. But the 

question is not whether plaintiff reported these incidents. It is whether the jury could 

reasonably use these incidents (along with others) to draw an inference of discrimination. 

The jury might have reasonably inferred here that such remarks among black employees 

were so widespread and so uniformly tolerated that any reporting would have been futile, 

or even that these comments, when made by black employees, simply were tolerated and 

not reported. 

43 It is important to note that these proofs challenge the credibility of defendant’s 

nondiscriminatory defense and need not be considered elements of a “similarly situated” 

case, which we have held requires that “all of the relevant aspects of [the plaintiff’s]

employment situation were nearly identical to those of [the comparative employee’s] 

employment situation.” Town, 455 Mich at 699-700 (opinion by BRICKLEY, J.) 

(quotation marks omitted). 
23

knew about and tolerated unequal enforcement of their policies. This trial provided the 

interesting situation wherein a defendant’s management employees explained that they 

were aware of conduct among black employees that violated the defendant’s zerotolerance policy. This testimony could have allowed a reasonable jury to conclude that 

defendant applied a different standard based on race. 

The critical testimony on this issue was offered by Weaver. On direct 

examination, plaintiff’s counsel questioned Weaver as follows:

[Plaintiff’s Counsel]: . . . Under oath [during your deposition], I 

asked you this: “Did you tell Ms. Caine-Smith that a lot of people made 

racial jokes?”

[Weaver]: I did not say a lot. I said it happened, and that’s what’s in 

my deposition.

[Plaintiff’s Counsel]: You said what happens?

[Weaver]: That there were racial comments made, yes. 

[Plaintiff’s Counsel]: Okay. So you told Linda Caine-Smith that 

when you talked to her November 3rd; right?

[Weaver]: Yes.

[Plaintiff’s Counsel]: Okay. This is November 3rd, a few days 

before [plaintiff] was fired?

[Weaver]: Um hmm. Yes.

[Plaintiff’s Counsel]: Now isn’t it a fact that, when you said that,

Caine-Smith responded by saying, “It happens among African-Americans 

and it’s not the other way around”; right?

[Weaver]: Yes.

[44]

 44 Emphasis added.
24

Thus, the jury was shown an exchange between two of defendant’s higher-level 

employees in which the dean, Weaver, reported to her supervisor, principal Caine-Smith, 

that conduct, which was at least some respects similar to that for which plaintiff was 

being investigated, routinely occurred at the school. Caine-Smith responded by not only 

acknowledging the racial inconsistency, but, the jury might have concluded, by

condoning it as well.45

This point was further emphasized as Weaver’s testimony continued:

[Plaintiff’s Counsel]: Okay. So there, a few days before [plaintiff] 

was fired, when you said to Caine-Smith racial jokes happen here, how 

Caine-Smith distinguished [plaintiff’s] situation was that the racial jokes 

happened amongst African-Americans; right?

[Weaver]: And that someone was offended, yes.

* * *

[Plaintiff’s Counsel]: Okay. So there was a distinction between 

Craig—there was a distinction Caine-Smith—Ms. Caine-Smith made 

between Craig and the other jokesters; and that distinction was racial; 

correct?

[Weaver]: No

[Plaintiff’s Counsel]: Well didn’t Caine-Smith—

[Weaver]: Oh, you’re saying because it—okay, I guess I could see 

where you would say that, yes.

[Plaintiff’s Counsel]: Okay. So you would agree that the fact that 

Craig is white and the fact that the other jokesters were African-American, 

that was a factor that Caine-Smith seemed to be considering, right?

 45 The jury could have interpreted this testimony in any number of ways. But, keeping in 

mind that all evidence and inferences must be weighed in plaintiff’s favor, Wilkinson, 

463 Mich at 391, nothing precluded the jury from viewing the testimony in this manner. 
25

[Weaver]: That’s what my statement says, yes.

[Plaintiff’s Counsel]: And that’s the truth; isn’t it?

[Weaver]: That’s not—no, I believe it was more about the 

offensiveness.

[Plaintiff’s Counsel]: But race was still a factor?

[Weaver]: Race is a factor when it’s a racial comment.

[46]

On this testimony the jury could reasonably find that race was a “but for” cause in the 

decision to investigate plaintiff and escalate the punishment for his racial comments.

47 

This is true despite the arguable differences between plaintiff’s racial comments and 

those of his black colleagues. Defendant argues that no reasonable inference of 

discrimination can be drawn here because plaintiff’s jokes were told in a classroom and, 

in this case, someone was offended. These are certainly distinctions which, if credited by 

the jury, might reasonably have allowed it to find for defendant. But we note that when 

Weaver brought to Caine-Smith’s attention the fact that “racial jokes happen here,” 

Caine-Smith did not respond only by noting that in plaintiff’s case someone was 

offended, or at all by saying that plaintiff’s jokes were made in the presence of children. 

Instead, she responded by invoking race as a distinction. Taken together with the other 

evidence presented, a reasonable jury could infer that defendant violated the CRA, as 

evidenced by Weaver’s apparent concession that race was involved in the decision. 

 46 Emphasis added.

47 Matras, 424 Mich at 682. 
26

Nevertheless, defendant presented to the jury numerous nondiscriminatory reasons 

for its decision to terminate plaintiff’s employment—evidence of plaintiff’s multiple and 

inconsistent explanations for his in-classroom statement about his preference for white 

rather than brown tables, along with evidence that plaintiff had attempted to impede the 

investigations and had lied or been dishonest with Caine-Smith. These reasons, not race, 

defendant asserted, were the reasons why it decided to terminate plaintiff. 

Plaintiff, however, presented sufficient evidence for a reasonable juror to reject as 

unbelievable these race-neutral reasons. The testimony of defendant’s witnesses 

contained numerous inconsistencies. First, in contradiction of Weaver’s testimony, 

Caine-Smith testified that Weaver never told her about the other racial comments made 

by black employees in the school. If the jury believed Weaver, it could reasonably have 

discredited Caine-Smith’s testimony. Moreover, Unwin’s admission that termination was

a disciplinary option even before defendant became aware of any allegation of plaintiff’s 

interference with the investigation could also have led the jury to conclude that plaintiff 

was being treated differently because of his race.

This conclusion is buttressed by plaintiff’s positive teaching record at the school 

and the fact that defendant chose the highest form of punishment, termination, for a first 

offense, without even speaking with plaintiff to obtain his version of his postsuspension 

discussion with Bell.

48 While the employee handbook allows for termination for a first 

 48 Unwin testified that some offenses are “so serious that following a thorough 

investigation they could result in corrective action up to and including termination from 

employment for the first offense.”
27

offense, Unwin testified that the decision to terminate is normally dependent “on certain 

factors, including, but not limited to, the seriousness of the violation and whether it is a

first time violation or a recurrence.” She also testified that such a termination would 

“follow[] a thorough investigation . . . .” Unwin also acknowledged plaintiff’s “good 

record” concerning race relations while working for defendant, and that plaintiff had 

never before committed misconduct. In closing arguments, plaintiff’s counsel 

highlighted these facts, arguing that “it just wasn’t reasonable to fire a person for this 

offense after such a perfect record, after such a record of good faith and fairness and 

respect in racial matters.” Given this, plaintiff’s counsel further argued, defendant “fails 

on the reasonableness test; and, if [defendant] did not act reasonably, something else was 

afoot, something else was going on . . . .” While a jury may not second-guess an 

employer’s business decisions, and was in no way required to draw the inferences 

suggested by plaintiff’s counsel, a reasonable jury could have used these facts to support 

a finding of discrimination. 

With respect to the claim that plaintiff interfered with defendant’s investigation, 

Unwin admitted that plaintiff never explicitly asked Bell to lie, though she still believed 

he was asking Bell to lie. And the jury heard evidence that defendant did not even speak 

with plaintiff regarding his postsuspension discussion with Bell. Defendant only spoke 

with plaintiff about the initial incident, not about the subsequent allegations of 

interference, and terminated him after his first offense, despite his otherwise “good” 

record.

Of its varying rationales for terminating plaintiff, only one—the fact that 

plaintiff’s racial banter occurred around students—was based on information that 
28

defendant received before deciding to investigate plaintiff’s wrongdoing and escalate to 

warnings that suspension and termination could occur as a result.49 Like each of the 

other nondiscriminatory reasons provided by defendant, plaintiff disputed, albeit 

inconsistently, the accuracy of this allegation, claiming that none of the students was 

within earshot when he made his statement. 

When considering this evidence as a whole, and by making all reasonable 

inferences in favor of plaintiff, a reasonable juror could have disbelieved defendant’s 

race-neutral reasons for plaintiff’s termination and have believed instead that 

consideration of his race was the cause. 

The jury, as the trier of fact and deliberative body charged to make credibility 

determinations, could have determined that the statements of Weaver and Caine-Smith 

established that race was a “but for” cause of their decision-making concerning plaintiff. 

That testimony, along with the evidence that defendant had a zero-tolerance policy,

which required reporting, investigation, and punishment of all forms of negative racial 

stereotyping, that it failed to apply when black employees violated the policy, in addition 

to the speed with which defendant terminated plaintiff, was sufficient to allow a 

reasonable jury to conclude that race was the real reason defendant fired plaintiff. 

Because, when assessing a motion for JNOV we are required “to review the 

evidence and all legitimate inferences in the light most favorable to the nonmoving 

 49 In fact, plaintiff had already been suspended pending the remainder of defendant’s 

investigation before he allegedly tried to interfere with the investigation by contacting 

Bell and Code. 
29

party,”50 we conclude that there was sufficient evidence of discriminatory intent before 

the jury. The jury’s verdict, finding a violation of the CRA, was supported by the totality 

of the evidence presented.51

IV. MCL 380.1230b

Because we conclude that plaintiff did present sufficient evidence to support the 

jury’s ultimate finding of discrimination, we must next decide whether the trial court 

acted contrary to MCL 380.1230b, by admitting evidence that defendant reported

plaintiff’s misconduct to his prospective employers.

Generally, “[a]ll relevant evidence is admissible, except as otherwise provided by 

the Constitution of the United States, the Constitution of the State of Michigan, the[]

rules [of evidence], or other rules adopted by the Supreme Court. Evidence which is not 

relevant is not admissible.”52 Evidence may also be precluded by statute.53 MCL

380.1230b is such a statute.

MCL 380.1230b provides, in pertinent part:

(1) Before hiring an applicant for employment, a school district, 

local act school district, public school academy, intermediate school 

district, or nonpublic school shall request the applicant for employment to 

sign a statement that does both of the following:

 50 Wilkinson, 463 Mich at 391.

51 See Morinelli, 242 Mich App at 260-261 (“If reasonable jurors could have honestly 

reached different conclusions, the jury verdict must stand.”). 

52 MRE 402; see also Waknin v Chamberlain, 467 Mich 329, 333; 653 NW2d 176 (2002).

53 People v Layher, 464 Mich 756, 761; 631 NW2d 281 (2001). 
30

(a) Authorizes the applicant’s current or former employer or 

employers to disclose to the school district . . . any unprofessional conduct 

by the applicant[54] and to make available to the school district, local act 

school district, public school academy, intermediate school district, or 

nonpublic school copies of all documents in the employee’s personnel 

record maintained by the current or former employer relating to that 

unprofessional conduct.

(b) Releases the current or former employer, and employees acting 

on behalf of the current or former employer, from any liability for 

providing information described in subdivision (a), as provided in 

subsection (3), and waives any written notice required under section 6 of 

the Bullard-Plawecki employee right to know act . . . .

[55]

(2) Before hiring an applicant for employment, a school district, 

local act school district, public school academy, intermediate school 

district, or nonpublic school shall request at least the applicant’s current 

employer or, if the applicant is not currently employed, the applicant’s 

immediately previous employer to provide the information described in 

subsection (1)(a), if any. The request shall include a copy of the statement 

signed by the applicant under subsection (1). 

(3) Not later than 20 business days after receiving a request under 

subsection (2), an employer shall provide the information requested and 

make available to the requesting school district, local act school district, 

public school academy, intermediate school district, or nonpublic school 

copies of all documents in the employee’s personnel record relating to the 

unprofessional conduct. An employer, or an employee acting on behalf of 

the employer, that discloses information under this section in good faith is 

immune from civil liability for the disclosure. An employer, or an employee 

acting on behalf of the employer, is presumed to be acting in good faith at 

 54 The statute defines “unprofessional conduct” as “1 or more acts of misconduct; 1 or 

more acts of immorality, moral turpitude, or inappropriate behavior involving a minor; or 

commission of a crime involving a minor. A criminal conviction is not an essential 

element of determining whether or not a particular act constitutes unprofessional 

conduct.” MCL 380.1230b(8)(b).

55 Plaintiff executed the statutory release before defendant provided any information to 

plaintiff’s prospective employers. 
31

the time of a disclosure under this section unless a preponderance of the 

evidence establishes 1 or more of the following:

(a) That the employer, or employee, knew the information disclosed 

was false or misleading.

(b) That the employer, or employee, disclosed the information with a 

reckless disregard for the truth.

(c) That the disclosure was specifically prohibited by a state or 

federal statute.[56]

Review of the plain language of this statute shows that it does three important 

things pertinent to this appeal: (1) it requires the applicant’s current or former employer 

or employers to disclose to another school district any unprofessional conduct by the 

applicant;

57 (2) it requires an applicant for a teaching job to “[r]elease[] the current or 

former employer, and employees acting on behalf of the current or former employer, 

from any liability for providing [the] information”;

58 and (3) it provides that an employer 

who discloses information in good faith “is immune from civil liability for the 

disclosure.”59 The statute, however, does not define the term “liability.”

Plaintiff did not argue that defendant’s disclosures were false or misleading, 

recklessly disregarded the truth, or otherwise violated state or federal statutes.60 Plaintiff 

 56 Emphasis added. 

57 MCL 380.1230b(3). 

58 MCL 380.1230b(1)(b). 

59 MCL 380.1230b(3). 

60 Under MCL 380.1230b(3)(a) through (c), an employer that discloses the information in 

good faith has unqualified immunity from civil liability for the disclosure. The employer 

is presumed to be acting in good faith unless the evidence establishes one of the 
32

does contend that “liability” in MCL 380.1230b(3) refers to the claim for which a 

plaintiff is seeking recovery. In other words, plaintiff argues he is not precluded from 

presenting evidence of the mandatory disclosure because he did not sue for the disclosure 

itself—he sued for a violation of the CRA and presented evidence of the adverse impact 

of the disclosure to establish future damages. Plaintiff’s belief is that only a direct action 

for the disclosure, e.g., a defamation claim, is precluded by this statute, but the admission 

of evidence of the disclosures in a case such as this is permissible.61 On the other hand, 

 

following:

(a) That the employer, or employee, knew the information disclosed 

was false or misleading.

(b) That the employer, or employee, disclosed the information with a 

reckless disregard for the truth.

(c) That the disclosure was specifically prohibited by a state or 

federal statute.

An employee can challenge the employer’s disclosures by presenting evidence to satisfy 

MCL 380.1230b(3)(a), (b), or (c), which then, and only then, operates to remove the 

good-faith presumption that entitles the employer to immunity. Because plaintiff has not 

pursued a challenge to defendant’s immunity under MCL 380.1230b(3)(a), (b), or (c), 

defendant is entitled to unqualified immunity because it is presumed to have acted in 

good faith. We further note that this provision demonstrates that the Legislature did not 

foreclose plaintiffs from introducing evidence of an employer’s disclosures in certain 

circumstances, but plaintiffs are permitted to do so only after establishing that the 

disclosures were made in bad faith. 

61 The dissent makes a related, ostensibly compelling, argument: liability and damages 

are separate concepts as exemplified by the fact that we routinely bifurcate trial into 

liability and damage segments. There is just one problem with this argument. While we 

can conceptually analyze damages issues independently of liability questions, there can 

be no damages without liability. Period. A legislative decision completely to preclude 

liability necessarily precludes damages on that same basis. The dissent’s position is 

anchored in the argument that the “civil immunity” granted by the statute depends on the 
33

defendant argues that plaintiff’s position would eviscerate the protection provided by the 

statute and is clearly in contravention of the Legislature’s expressed intent, as evidenced 

by the broad language of immunity it provided. 

Dictionary definitions of the term “liability” support defendant’s conclusion.62 

Black’s Law Dictionary (10th ed) defines “liability” as “1. The quality, state, or condition 

of being legally obligated or accountable; legal responsibility to another or to society, 

enforceable by civil remedy or criminal punishment . . . . 2. A financial or pecuniary 

obligation in a specified amount . . . .”63 More relevant, it further defines “civil liability”

as “1. Liability imposed under the civil, as opposed to the criminal, law. 2. The quality, 

state, or condition of being legally obligated for civil damages.”64 Applying these 

 

source of the liability. We see no textual support for the dissent’s view that immunity 

under the statute depends on the claim underlying the liability. 

62 “An undefined statutory term must be accorded its plain and ordinary meaning. A lay 

dictionary may be consulted to define a common word or phrase that lacks a unique legal 

meaning. A legal term of art, however, must be construed in accordance with its peculiar 

and appropriate legal meaning.” Brackett v Focus Hope, Inc, 482 Mich 269, 276; 753 

NW2d 207 (2008) (citations omitted). If the definitions are the same in both a lay 

dictionary and legal dictionary it is unnecessary to determine whether the phrase is a term 

of art and it does not matter to which type of dictionary this Court resorts. Id. 

63 Emphasis omitted. 

64 Black’s Law Dictionary (10th ed), p 1054 (emphasis altered). Lay dictionaries are 

similarly uniform with their definitions of “liability” and consistent with the legal 

definition. See, e.g., The American Heritage Dictionary (2d College ed) (defining 

“liability” as “[t]he state of being liable. . . . Something for which one is liable; an 

obligation or debt”); Merriam-Webster’s Collegiate Dictionary (11th ed) (defining 

“liability” as “the quality or state of being liable” and as “something for which one is 

liable; [especially] : pecuniary obligation”). These lay dictionaries do not define “civil 

liability.”
34

definitions of “liability” and “civil liability” to the statutory language, it is clear that the 

statute is sufficient in scope to preclude admission of the disclosure evidence.65 The 

admission of evidence and argument regarding the mandatory disclosures for the purpose 

of assessing damages allowed the jury to impose against defendant legal obligations

arising from the disclosure. The trial court was required to enforce the broad grant of 

immunity against civil liability for these disclosures that the Legislature provided to 

defendant, and the trial court’s decision to admit this evidence violated MCL 380.1230b. 

Additionally, this Court has previously interpreted the term “liability” and other 

liability-limiting statutes in a manner generally consistent with defendant’s position. In

Hannay v Transp Dep’t, this Court held that the phrase “liable for bodily injury”

contained in the vehicle exception to governmental immunity,66 means being “legally 

responsible for damages flowing from a physical or corporeal injury to the body.”67 This 

Court thus interpreted the statutory phrase to permit recovery of economic and 

noneconomic damages arising from “bodily injury.”68 In MCL 380.1230b, the 

Legislature included no such limiting language (e.g., “bodily injury”), requiring simply 

 65 See also Mayfield v First Nat’l Bank of Chattanooga, 137 F2d 1013, 1019 (CA 6, 

1943) (“Liability is a broad legal term which is usually held to include every kind of legal 

obligation, responsibility or duty, certainly all that are measured by money obligation.”).

66 MCL 691.1405 (“Governmental agencies shall be liable for bodily injury and property 

damage resulting from the negligent operation by any officer, agent, or employee of the 

governmental agency, of a motor vehicle of which the governmental agency is an 

owner . . . .”). 

67 Hannay v Transp Dep’t, 497 Mich 45, 51; 860 NW2d 67 (2014) (emphasis added). 

68 See id.
35

that the job applicant release former employers from “any liability”69 and granting 

immunity from “civil liability” to the former employer.70 Thus, in accordance with the 

definition of “liable” used in Hannay, defendant is not “legally responsible for damages 

flowing from”71 the mandatory disclosure.

Another decision of this Court, In re Bradley Estate,

72 is also helpful in deciding

the instant case. In Bradley Estate, the petitioner became concerned about her brother’s 

mental health and successfully petitioned the probate court for his hospitalization, 

averring that her brother was a danger to himself and his family.73 After the probate 

court granted the petitions, which stated that a “ ‘peace officer shall take [the brother] 

 69 MCL 380.1230b(1)(b).

70 MCL 380.1230b(3). 

Contrary to the dissent, we do not believe that Henry v Dow Chem Co, 473 Mich 

63; 701 NW2d 684 (2005), requires the opposite conclusion. In that case, the Court 

merely held that a plaintiff is required to prove an actual injury to person or property in 

order to prevail on a negligence claim, despite the fact that the elements of a negligence 

action are routinely noted as “(1) duty, (2) breach, (3) causation, and (4) damages.” Id. at 

74. In other words, the damages sought in a negligence action must necessarily flow 

from an actual injury. But this distinction between “injury” and “damages” has no 

bearing on whether one can have damages without liability. As discussed, the plain 

language of MCL 380.1230b(3), unlike the elements of a negligence claim, contains no 

injury requirement. Therefore, our holding that the Legislature’s provision of 

“immun[ity] from civil liability for the disclosure,” MCL 380.1230b(3), extends to 

preclude damages based on the disclosure, is simply unaffected by Henry’s discussion of 

injury in the negligence context. 

71 Hannay, 497 Mich at 51, 60-62. 

72 In re Bradley Estate, 494 Mich 367, 372; 835 NW2d 545 (2013).

73 Id.
36

into protective custody and transport him . . . to [a community mental health contract 

facility],’ ” the petitioner immediately submitted the order to the respondent sheriff’s 

department.74 The respondent sheriff’s department failed to execute the court order, and 

nine days after the probate court order was entered, the brother committed suicide.75 

The petitioner, acting as personal representative for her brother’s estate, filed a 

lawsuit in circuit court against the sheriff’s department for wrongful death, alleging gross 

negligence. The petitioner’s claim was dismissed on governmental immunity grounds.76 

The petitioner did not appeal this dismissal, instead filing a petition for civil contempt in 

the original probate court, arguing that the sheriff’s office violated the court’s order and 

that the sheriff’s misconduct constituted contempt for which she was entitled to 

indemnification damages.77 The sheriff’s department again argued that governmental 

immunity barred the suit, but the probate court denied the motion for summary 

disposition, holding that “ ‘[g]overnmental immunity does not insulate a contemnor from 

the contemnor’s refusal or negligence to obey a court order.’ ”78 The sheriff’s 

department appealed in the circuit court, which reversed and remanded to the probate 

court for entry of an order granting summary disposition in favor of the sheriff’s 

 74 Id. at 372-373. 

75 Id. at 373. 

76 Id. at 373-374. 

77 Id. at 374. 

78 Id. at 374-375 (alteration in original). 
37

department because the circuit court concluded that the petitioner’s claim was based in 

tort and barred by governmental immunity.79 The Court of Appeals reversed the circuit 

court and held that the governmental tort liability act (GTLA) does not immunize 

governmental agencies from “ ‘tort-like’ ” damages in a contempt suit, even though the 

underlying facts “ ‘could have also established a tort cause of action . . . .’ ”80

On appeal, this Court reversed the Court of Appeals. We held that the language in 

MCL 691.1407(1), stating that governmental agencies are immune from “tort liability,”81

meant that governmental agencies were immune from “all legal responsibility arising 

from a noncontractual civil wrong for which a remedy may be obtained in the form of 

compensatory damages.”82 In reaching that conclusion, this Court held that, “[a]s 

commonly understood, the word ‘liability,’ refers to liableness, i.e., ‘the state or quality

of being liable.’ To be ‘liable’ means to be ‘legally responsible[.]’ Construing the term 

liability along with the term ‘tort,’ it becomes apparent that the Legislature intended ‘tort 

liability’ to encompass legal responsibility arising from a tort.”83

Bradley Estate supports our construction of MCL 380.1230b and our conclusion 

that the disclosure evidence should not have been admitted. Though plaintiff’s lawsuit 

 79 Id. at 375.

80 Id. at 375-376. 

81 MCL 691.1407(1) (emphasis added).

82 Bradley Estate, 494 Mich at 385. 

83 Id. (citations omitted; second alteration in original).
38

clearly raises a claim under only the CRA, the admission of evidence and argument 

regarding the mandatory disclosures for the purpose of assessing damages allowed the 

jury to impose on defendant “legal responsibility arising from” the disclosure.

84 That is 

what the language of MCL 380.1230b(3) expressly precludes. As this Court noted in 

Bradley Estate, the label of the action does not control.85 The statute here clearly 

provides that no liability—meaning “all legal responsibility arising from a . . . civil 

wrong”86—may come from the disclosures. The main difference between Bradley Estate

and the instant case is that the Legislature’s intended scope of immunity is even broader

under MCL 380.1230b. The Legislature did not limit the type of civil liability from 

which school employers are immune for their mandatory disclosures. Instead, it provided

blanket protection from all civil liability.

87 Given the plain language of the statute and 

our prior caselaw, we conclude that the trial court clearly erred by admitting this 

evidence. Its use at trial violated the statutory immunity for disclosing schools by 

allowing the jury to base damages on the disclosures.

 84 Id.

85 Id. at 386-387 (“Petitioner and the Court of Appeals interpret this passage from [Ross v 

Consumers Power Co (On Rehearing), 420 Mich 567, 647-648; 363 NW2d 641 (1984),]

to mean that the label of the action controls in determining whether an action imposes tort

liability and that, if the claim is not a traditional tort, then the GTLA is inapplicable and 

‘tort-like’ damages are recoverable. Ross, however, made no such pronouncement and 

did not consider the meaning of ‘tort liability,’ which is the question that is now before 

this Court. Instead, consistent with our holding in this case, Ross merely recognized that 

the GTLA does not bar a properly pleaded contract claim.”).

86 Bradley Estate, 494 Mich at 385.

87 MCL 380.1230b(3). 
39

We are left with one view of the statute—plaintiff was not allowed to present 

evidence concerning the effect of the disclosures to the jury, because, contrary to the 

Legislature’s prohibition, that admission permitted the jury to attribute liability to 

defendant flowing from the disclosure.88 The fact that the liability here is expressed in 

terms of damages plaintiff suffered as a result of the disclosures does not negate the fact 

that the defendant is being held civilly liable for the statutorily mandated disclosures. 

The trial court erred by allowing plaintiff to present this evidence to the jury in light of 

the language of MCL 380.1230b(3). This error tainted the jury’s entire future damages 

award.89 We therefore vacate the jury’s award of future damages. 

 88 The breadth of the immunity afforded by this statute is underscored by the fact that the 

Legislature provided both complete civil immunity for disclosures and required that all 

new employees sign a statement that releases the school district from “any liability for 

providing information” concerning the employee’s unprofessional conduct to other 

school districts. MCL 380.1230b. As noted, plaintiff signed this statutory release before 

defendant provided the disclosures to prospective employers. This belt and suspenders 

approach to protecting the school districts of this state is a clear indication of the 

Legislature’s intent to preclude the type of liability imposed on defendant in this case. 

Defendant fulfilled its statutorily required duties under the statute and cannot be held 

liable therefor. Furthermore, even if we were to accept plaintiff’s interpretation of the 

statute, at least one of the release forms plaintiff signed pursuant to MCL 

380.1230b(1)(b), provided that plaintiff would “release and hold harmless” defendant for 

any civil or criminal liability for providing information to prospective employers. 

Arguably, this release form would preclude plaintiff from receiving any remuneration 

from defendant for the disclosures. See Black’s Law Dictionary (10th ed) (defining “hold 

harmless” as “[t]o absolve (another party) from any responsibility for damage or other 

liability arising from the transaction”). 

89 Defendant argued in its motion for JNOV, that “the jury’s award of future economic 

losses” was excessive and based on the erroneous admission of defendant’s statutorily 

required disclosures. (Emphasis added.) As previously noted, the jury provided an 

itemized verdict with $485,000 in future damages. Because the trial court permitted the 

jury to base these future damages on the mandatory disclosures, contrary to MCL 
40

V. CONCLUSION

While the Court of Appeals erred by holding that plaintiff had presented sufficient 

direct evidence of discrimination to sustain the jury verdict, the Court of Appeals 

correctly held that defendant presented sufficient circumstantial evidence of 

discrimination to sustain the jury’s verdict. The trial court erred, however, by admitting 

evidence of defendant’s mandatory disclosures of plaintiff’s unprofessional conduct 

because MCL 380.1230b provides complete immunity for those disclosures, and the 

Court of Appeals erred by upholding the admission of that evidence. For these reasons, 

we reverse in part the judgment of the Court of Appeals, vacate the jury award for future 

damages, and remand this case to the trial court for further proceedings consistent with 

this opinion.

Robert P. Young, Jr.

Stephen J. Markman

Brian K. Zahra

Bridget M. McCormack (as to 

Parts I, II, and III)

David F. Viviano

Richard H. Bernstein (as to Parts 

I, II, and III)

Joan L. Larsen

 

380.1230b(3) (“An employer . . . that discloses information under this section in good 

faith is immune from civil liability for the disclosure.”), this award cannot stand as a 

matter of law. 
S T A T E O F M I C H I G A N

SUPREME COURT

CRAIG HECHT,

Plaintiff-Appellee,

v No. 150616

NATIONAL HERITAGE ACADEMIES, 

INC.,

Defendant-Appellant.

MCCORMACK, J. (concurring in part and dissenting in part).

I agree with the majority that the plaintiff presented sufficient evidence of 

discrimination such that the trial court did not err by denying the defendant’s motion for 

judgment notwithstanding the verdict. But I respectfully dissent from the majority’s 

decision to vacate the jury award for future damages. I do not agree that the defendant’s 

disclosures of the plaintiff’s unprofessional conduct subjected the defendant to any “civil 

liability for the disclosure,” which I agree MCL 380.1230b(3) would bar. No, the 

defendant incurred all its civil liability in this case when it discharged the plaintiff on the 

basis of race in violation of the Civil Rights Act (CRA), MCL 37.2101 et seq. The jury 

established that fact through its verdict in the plaintiff’s favor. The jury’s consideration 

of the defendant’s disclosures merely provided the basis for the jury to determine the 

extent of the plaintiff’s damages, a very different question from the issue of the 

defendant’s liability.
2

I. MCL 380.1230b

As the majority observes, MCL 380.1230b(3) immunizes an employer from “civil 

liability” for disclosing information in good faith to a potential school employer about an 

employee’s unprofessional conduct. As I see it, there are two ways that an employer

might theoretically demonstrate that an employee seeks to hold it civilly liable for its 

disclosure of the employee’s unprofessional conduct to potential employers, thereby 

entitling it to immunity under MCL 380.1230b. 

First, the employer could show that the employee is suing it for an actual injury 

caused by the disclosure and resultant damages—in a cause of action for defamation, for 

example. No one suggests that is the case here, given that the plaintiff sued for a 

completely different injury—a discriminatory discharge under the CRA.

Second, the employer can show that the plaintiff’s separate action, arising from a 

violation of the CRA in this case, is attempting to hold it civilly liable for its disclosures 

under MCL 380.1230b by, as the plaintiff in this case describes it, “enhanc[ing] [the] 

damages,” through the introduction of evidence of harm caused by the disclosures. The 

majority accepts this second theoretical basis for granting immunity under MCL 

380.1230b. The majority reasons that our recent decisions discussing “liability” as 

including legal responsibility for damages flowing from an injury support the conclusion 

that allowing the plaintiff to recover damages established by introducing the defendant’s 

disclosures into evidence effectively subjects the defendant to more damages, and by 

extension, more liability. I disagree with this reasoning. 
3

The defendant’s argument is flawed because it rests on the fundamentally faulty

premise that the introduction of evidence of its disclosures increased the defendant’s

liability because it increased the plaintiff’s damages. The majority relies on dictionary 

definitions of the word “liability” and our decisions in Hannay v Transp Dep’t, 497 Mich 

45; 860 NW2d 67 (2014), and In re Bradley Estate, 494 Mich 367; 835 NW2d 545 

(2013), to support its conclusion that the statute precludes the plaintiff from introducing 

the disclosures into evidence to prove his future damages. I respectfully disagree. 

Liability and damages are related, of course, but they are not the same thing. One 

illustration of this fact is our courts’ common practice of bifurcating proceedings on these 

two issues, conducting a liability phase followed by a damages phase. See, e.g., Adama v 

Doehler-Jarvis, Div of N L Indus, Inc (On Remand), 144 Mich App 764, 767; 376 NW2d 

406 (1985). 

Disclosing the plaintiff’s unprofessional conduct did not create additional legal 

responsibility for which the defendant was on the hook; rather, it was the alleged illegal 

act of discharging the plaintiff based on his race that gave rise to all the defendant’s 

liability, i.e., its legal responsibility arising from a wrongful action. The injury from 

which the liability arose was the discriminatory discharge, not the disclosures. 

Introducing evidence of the defendant’s disclosures of the plaintiff’s conduct merely 

assisted the jury in determining the appropriate remedy for the discriminatory discharge. 

Put differently, evidence of the disclosures helped the jury determine the appropriate 

amount of damages for which the defendant was legally responsible because of its 

discriminatory conduct. See, e.g., Bradley Estate, 494 Mich at 397 (holding that “tort 

liability” includes “all legal responsibility arising from noncontractual civil wrongs for 
4

which a remedy may be obtained in the form of compensatory damages”) (emphasis 

added).

This conclusion is entirely consistent with the dictionary definitions of the word 

“liability” cited by the majority and with dictionary definitions of the word “damages.” 

The defendant’s liability, i.e., the defendant’s “quality, state, or condition of being legally 

obligated” for damages was triggered by the allegedly discriminatory decision to 

terminate the plaintiff’s employment. Black’s Law Dictionary (10th ed). “Damages” are 

defined as “[m]oney claimed by, or ordered to be paid to, a person as compensation for 

loss or injury[.]” Black’s Law Dictionary (7th ed). 

MCL 380.1230b(3) confers immunity from liability, in other words, the state of 

being legally obligated for damages, “for the disclosure,” not from paying money as

compensation for a state of legal responsibility unrelated to the disclosure. Because the 

statutory immunity is tied to the liability not the remedy, I agree with the plaintiff that 

MCL 380.1230b(3) only precludes imposing liability (and damages flowing therefrom)

on a defendant when the liability arises from an injury caused by the disclosure itself.

This Court’s decision in Hannay further supports my analysis. In Hannay, 497 

Mich at 64, we observed that “ ‘damages’ and ‘injury’ are not one and the same—

damages flow from the injury.” Because the damages flow from the injury, and the injury 

in this case is the discriminatory discharge, evidence of the disclosures did not impose 

any additional liability on the defendant. 

Bradley Estate, 497 Mich 367, is largely inapposite here. That case involved a 

determination whether the plaintiff was seeking to impose “tort liability” on the 

defendant by bringing an action for civil contempt. This Court answered the question in 
5

the affirmative. But the central question in that case was whether the plaintiff’s action for 

civil contempt constituted a “tort” suit; there was no dispute that if the answer to that 

question was yes, the governmental tort liability act , MCL 691.1401 et seq., barred both

liability and (necessarily) damages. The defendant in this case does not assert that the 

plaintiff’s CRA claim is barred by MCL 380.1230b(3) or that the jury’s determination 

that the defendant was liable for employment discrimination was improper under the 

statute; the sole issue is whether the admission of the defendant’s disclosures to allow the 

jury to determine the proper amount of damages constituted “civil liability for the 

disclosure” under MCL 380.1230b(3). 

This Court’s decision in Henry v Dow Chem Co, 473 Mich 63; 701 NW2d 684 

(2005), is far more helpful than Bradley Estate or Hannay. Henry instructs that a 

plaintiff must establish an actual injury before damages can be established, that the two 

are distinct, and that damages flow from the injury. Henry, 473 Mich at 75. As 

explained, disclosure of a school employee’s unprofessional conduct is not an injury 

giving rise to damages unless the plaintiff seeks to hold the defendant liable “for the 

disclosure” itself. MCL 380.1230b(3). This conclusion is confirmed if one considers 

what could have happened if the trial court had barred evidence of the defendant’s 

disclosures. The plaintiff could presumably have introduced other evidence showing that 

he applied for but was unable to obtain other teaching jobs, and the jury could have 

returned a verdict for exactly the same amount of damages on that basis.1

 The entirety of 

 1 In fact, the plaintiff had to introduce such evidence. See Morris v Clawson Tank Co, 

459 Mich 256, 264; 587 NW2d 253 (1998) (stating that the victim of a discriminatory 
6

the defendant’s liability emanates from the discriminatory discharge, not the disclosures. 

Damages determined as a result of the disclosures did not expose the defendant to any 

additional legal responsibility; instead the disclosures simply illustrated the harm for 

which the plaintiff sought a remedy. The defendant had already incurred legal 

responsibility for that harm by discriminatorily discharging the plaintiff.

The defendant’s argument, while containing some surface appeal in its simplicity, 

amounts to this fallacy: the admission into evidence of the disclosures increased the 

plaintiff’s damages, and liability is defined to include damages, so the disclosure exposed 

the defendant to greater liability from which it is immune. But this is contrary to Henry; 

one must demonstrate an actual injury before damages can be assessed, and the 

defendant’s attempt to work backward from the alleged “enhanced damages” from the 

disclosures to a new injury in the disclosures is contrary to Henry. In short, one cannot 

use damages to establish injury.2

 Because damages all “flow from the injury,” Hannay, 

497 Mich at 64, and not the other direction, the defendant’s underlying premise that the 

disclosures somehow increased the liability from the discriminatory discharge is 

incorrect.

 

discharge must mitigate his or her damages by making reasonable efforts to find new 

employment).

2 The majority contends that Henry is not helpful here because its distinction between 

“injury” and “damages” says nothing about liability. But an injury is precisely what 

gives rise to liability (and resulting damages) in the first place; one does not typically 

incur legal responsibility for benign conduct. Because the two are inextricably linked, 

the majority’s observation that the statute contains no injury requirement is, in my view,

beside the point.
7

Had the Legislature intended the result reached by the majority, it could have 

expressed that intent much more plainly by stating that an employer that discloses 

information in good faith under the statute is immune from any damages established by 

the disclosure. Alternatively, it could have simply said that evidence of an employer’s 

good faith disclosure under the statute is not admissible in a civil proceeding to establish 

a plaintiff’s damages. But it did not do so; instead, it said that a defendant is immune 

from civil liability “for the disclosure.” Given the absence of compelling textual support 

for the defendant’s argument, I conclude that the Legislature did not intend to foreclose a 

plaintiff, who has established liability for an illegal discharge, from introducing evidence 

of an employer’s disclosures in order to establish future damages and prove that he or she 

attempted to mitigate those damages. 

Accordingly, because the plaintiff’s injury was the discriminatory discharge rather 

than the defendant’s disclosures, and it was the discriminatory discharge for which the 

defendant was held liable, the future damages award did not constitute “civil liability for 

the disclosure.” MCL 380.1230b(3) (emphasis added). Quite simply, the disclosures 

merely allowed the plaintiff to demonstrate to the jury the full scope of his damages 

resulting from the defendant’s discriminatory discharge decision. I would therefore 

sustain the jury’s award of future damages; I respectfully dissent from the majority’s 

decision to the contrary.

II. CONCLUSION

I concur with the majority’s decision to uphold the jury’s verdict finding that the 

defendant unlawfully discriminated against the plaintiff on the basis of race. But I 
8

dissent from the majority’s conclusion that MCL 380.1230b(3) barred admission into 

evidence of the defendant’s disclosures of the plaintiff’s unprofessional conduct. I would 

therefore uphold the damages award and affirm the judgment below in its entirety. 

Bridget M. McCormack

Richard H. Bernstein