                                                                 Michigan Supreme Court
                                                                       Lansing, Michigan
                                         Chief Justice:	           Justices:



Opinion                                  Clifford W. Taylor 	      Michael F. Cavanagh
                                                                   Elizabeth A. Weaver
                                                                   Marilyn Kelly
                                                                   Maura D. Corrigan
                                                                   Robert P. Young, Jr.
                                                                   Stephen J. Markman




                                                       FILED MAY 11, 2005

  SHARDA GARG,

        Plaintiff-Appellee/Cross-Appellant,

  v                                                                 No. 121361

  MACOMB COUNTY COMMUNITY MENTAL HEALTH SERVICES,

       Defendant-Appellant/Cross-Appellee.
  _______________________________

  BEFORE THE ENTIRE BENCH

  MARKMAN, J.

        We granted leave to appeal to consider whether there

  was sufficient evidence to support plaintiff's claims of

  retaliatory    discrimination   and    whether           the     "continuing

  violations" doctrine of Sumner v Goodyear Tire & Rubber Co,

  427 Mich 505; 398 NW2d 368 (1986), should be preserved,

  modified, or abrogated in light of the language of the

  statute of limitations, MCL 600.5805(1).                  The jury found

  that plaintiff was not discriminated against on the basis

  of national origin, but was retaliated against on the basis

  of either her opposition to sexual harassment or because

  she    filed     a    grievance       claiming            national-origin
discrimination.                The Court of Appeals affirmed.                          Because we

conclude that, once evidence of acts that occurred outside

the     statute           of        limitations             period        is     removed      from

consideration,                 there        was         insufficient             evidence       of

retaliation based on either plaintiff's alleged opposition

to    sexual        harassment         or    her        filing       of    a    grievance,      we

reverse the judgment of the Court of Appeals and remand to

the    trial        court       for     entry          of    a     judgment      in     favor   of

defendant.           In        so    holding,          we    overrule          the    "continuing

violations" doctrine of Sumner, supra, as inconsistent with

the language of the statute of limitations, MCL 600.5805(1)

and (10).           As a result, we do not reach the other issues

raised on appeal or the issues raised in plaintiff's cross-

appeal.

                            I. Facts and Procedural History

       Plaintiff          Sharda        Garg      is        of    Asian    Indian       ancestry.

She    began        her    employment             as     a       staff    psychologist        with

defendant Macomb County Community Mental Health Services in

1978.          Plaintiff             testified          that        Donald       Habkirk,       the

director of defendant's disability section, which included

the     facility          where        plaintiff             worked,      had        during   1981

engaged        in     what          plaintiff           characterized            as     "sexually

harassing" behavior with female coworkers.                                       Specifically,

plaintiff observed Habkirk pull one coworker's bra strap

and     snap    the        elastic          panties           of    another.            Plaintiff
                                                   2

acknowledges that she herself was never treated in this

manner or otherwise sexually harassed, and that she never

reported to anyone the incidents she allegedly observed.

Habkirk denied engaging in such conduct.

        At "around the same time," plaintiff, while walking

down    an    office   corridor,      felt    someone's     hand    touch    her

upper       back,   near    her   shoulder.        Plaintiff       reacted    as

follows: "I felt somebody touching me, and I just turned

around and swung at him."             She further observed, "it was a

very automatic reaction on my part."                It was only after she

hit this person that she realized it was Habkirk whom she

had hit.        She and Habkirk stared at each other for a moment

before she proceeded into her office.                    Plaintiff did not

file a grievance, tell anyone about the incident, or offer

any    explanation     to    anyone   regarding      why    she    had    struck

Habkirk.        In response to a question concerning whether the

touching was "improper," plaintiff did not characterize it

as such.

        While    Habkirk    never   took     any   formal   action       against

plaintiff for striking him, and indeed testified that he

could not even remember the incident, plaintiff claims that

her formerly cordial relationship with Habkirk deteriorated

as     he    became    increasingly         cold   and   distant.          While

plaintiff generally enjoyed a good employment relationship

with defendant and its management initially, she asserted
                                       3

that she began to perceive changes in this relationship

following the touching incident.                        After six years of being

rated as either "outstanding" or "very good," plaintiff's

1983 performance review was downgraded to "satisfactory."

It    was    also     at    this        point        that   plaintiff        applied       for

several job promotions, in each case unsuccessfully.                                       The

first position she applied for in 1983 was given to someone

from        outside        the     organization,               despite        a      general

inclination by defendant in favor of internal promotions.

Two     other       promotion       applications               in     1983        were     also

rejected.          Over the next three years, plaintiff applied

unsuccessfully         for       four    more        promotions.           Plaintiff       was

denied       a     total     of     eighteen            promotion          opportunities,

including eleven during the period of 1983 through 1987.

During this period, Habkirk always served in plaintiff's

chain of command.            Once at a dinner party with plaintiff's

immediate         supervisor,       Robert           Slaine,    plaintiff's          husband

asked       why    plaintiff        had     not        been     promoted.                Slaine

responded that, in his opinion, it was because Habkirk did

not like plaintiff.                Slaine denied making this statement,

and     Habkirk       denied       telling            Slaine        that     he     disliked

plaintiff.

        In 1986, Kent Cathcart was chosen by Habkirk as the

new    program      director       in     plaintiff's          facility.            However,

little changed for plaintiff because she failed to receive
                                                4

any of the next three promotions for which she applied.                          In

December 1986, she was denied a promotion in favor of a

contract    employee    with       less        seniority.     Following        this

rejection    in     February    1987,          plaintiff    filed       her   first

promotion-related      grievance          with     the   union     representing

defendant's employees.          When plaintiff was again denied a

promotion in early 1987, this time in favor of a person

from outside the company, she filed a second promotion-

related grievance with the union in June 1987, alleging

that the denial was due to discrimination based on her

national origin and color.            The grievance was forwarded to

Cathcart, and was denied without investigation.                          Plaintiff

next applied for a promotion in 1989, but was again denied.

Plaintiff was denied seven promotions during the period of

1989 through 1997.

       Plaintiff claims that the "retaliation" against her

for filing these grievances also took the form of poor

overall treatment by defendant.                   Specifically, she claims

that    Cathcart,     and    the     two        supervisors   who        succeeded

Cathcart    after    plaintiff       was       transferred    to    defendant's

First North facility in 1995, treated her "in a degrading

and humiliating manner."             Plaintiff claims that Cathcart

would    criticize     her     for    not         participating         in    agency

activities, but would then deny her requests to participate

in   meetings,    conferences,       and        committees.        In    addition,
                                          5

plaintiff testified that Cathcart would reprimand her for

being even two minutes late for work, but would let her

coworkers "come and go as they pleased."                       Plaintiff also

testified    that     Cathcart        once     chastised      her   for     going

outside to look at a rainbow, but that her coworkers were

routinely allowed to go outside for cigarette breaks on

company time.        Cathcart also refused to give her keys to

the facility.         Finally, when she moved to First North,

plaintiff was given an office that was formerly a storage

closet.     The office was uncarpeted and had no windows.                     In

addition,    it     was     located    next     to   a   bathroom,        forcing

plaintiff     to     hear     "people        defecating       and   urinating"

throughout the day.          Plaintiff was assigned to this office

despite     her     seventeen         years     of    seniority       and     the

availability of more desirable office spaces.

     Plaintiff       also    claims     that    Cathcart      demonstrated      a

predisposition against "people of color" during the period

that she was employed by defendant under his supervision.

Specifically, plaintiff testified regarding four separate

displays    of     this   predisposition.            First,    when   Cathcart

learned that plaintiff's son had been accepted to medical

school, he allegedly stated that "there are enough Indian

doctors already."           Second, Cathcart allegedly complained

about the accent of an Indian psychiatrist, stating that

"these people have been here long enough, they ought to
                                        6

speak good English."               Third, Cathcart allegedly stated that

he would not have hired an African-American nurse if a

white    candidate          had    been     available.            Finally,    Cathcart

allegedly used a racially derogatory term when referring to

African-Americans.                Cathcart        denies    making    any     of    these

statements.

        On July 21, 1995, plaintiff brought this action under

the Civil Rights Act, MCL 37.2101 et seq., claiming that

her     promotion       denials       and     poor       treatment     were      due    to

national-origin discrimination and were in retaliation for

engaging in activities protected by the act.                                 Plaintiff

originally claimed retaliatory discrimination based solely

on      the      union            grievance         claiming         national-origin

discrimination.             She later amended her complaint to allege

that she was also retaliated against for opposing sexual

harassment.       Defendant denied the allegations and asserted

that some of the allegations were barred by the three-year

period     of     limitations.                MCL        600.5805(1)       and     (10).

Defendant       moved       for    partial        summary    disposition      on    that

basis, but the trial court denied the motion, citing the

"continuing violations" doctrine adopted in Sumner.

        Following       a    three-week       trial,        the    jury    found       that

plaintiff was not discriminated against because of national

origin    or     color.            However,        the    jury    also     found       that

defendant       had     retaliated        against         plaintiff       because      she
                                             7

"opposed sexual harassment or because she filed a complaint

or charge about being discriminated against."                              The jury

awarded plaintiff $250,000 in damages.

        Defendant filed a motion for judgment notwithstanding

the verdict or a new trial.                     The trial court noted that

"physical acts can convey a message better than words," and

that    plaintiff's          physical    response        to     the    touching     by

Habkirk was sufficient to inform defendant that she opposed

Habkirk's       sexually      harassing        behavior.        The     trial    court

further      held     that    sufficient        evidence       was    presented    to

allow    a     reasonable       juror    to     find     a     causal    connection

between plaintiff's striking Habkirk and her failure to be

promoted.        Because the evidence supported at least one of

the retaliation theories, defendant's motion was denied.

In an unpublished opinion, the Court of Appeals affirmed

the jury's verdict.            Unpublished opinion per curiam of the

Court     of    Appeals,       issued     March       29,      2002    (Docket     No.

223829).        The Court of Appeals held that the "continuing

violations" doctrine allowed the introduction of factual

allegations         going     back     more      than    three        years     before

plaintiff       filed    her     lawsuit        and     thus    the     statute     of

limitations was not a bar to the facts plaintiff presented

to the jury.            With regard to the merits, the Court of

Appeals        held    that     when    plaintiff            struck     Habkirk,     a

reasonable juror could have concluded that she "'raise[d]
                                          8

the specter,'" quoting Mitan v Neiman Marcus, 240 Mich App

679,    682;    613     NW2d    415    (2000),          that    she   was   opposing

Habkirk's sexual harassment.                     The Court of Appeals also

determined that there was sufficient evidence to allow a

reasonable      juror    to    conclude          that     plaintiff     established

both of her retaliation claims.

       After this Court directed the parties to present oral

argument on whether to grant leave to appeal or take other

action permitted by MCR 7.302(G)(1), 469 Mich 983 (2003),

and    having    heard    such    argument,          we    granted      defendant's

application       for     leave       to        appeal,        directing    briefing

regarding whether the "continuing violations" doctrine of

Sumner was consistent with the statute of limitations, MCL

600.5805(1).      469 Mich 1042 (2004).

                               II. Standard of Review

       The denial of a motion for judgment notwithstanding

the verdict is subject to review de novo.                             Sniecinski v

Blue Cross & Blue Shield of Michigan, 469 Mich 124, 131;

666 NW2d 186 (2003).              Reversal is permitted only if the

evidence,       while    viewed       in    a     light        most   favorable   to

plaintiff, fails to establish a claim as a matter of law.

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

Whether the "continuing violations" doctrine is consistent

with MCL 600.5805(1) and (10) is a question of law that we


                                           9

review de novo.       Jenkins v Patel, 471 Mich 158, 162; 684

NW2d 346 (2004).

                              III. Analysis

     The issue in this case is not whether plaintiff was

treated poorly or insensitively by defendant.                       Nor is it

whether defendant "retaliated" against plaintiff for her

conduct in hitting Habkirk.             Instead, the issue is whether

defendant    retaliated    against        plaintiff        specifically       for

conduct on her part protected by the Civil Rights Act.                        MCL

37.2701 provides, in pertinent part:

          Two or more persons shall not conspire to,
     or a person shall not:

             (a) Retaliate or discriminate against a
     person because the person has opposed a violation
     of this act, or because the person has made a
     charge, filed a complaint, testified, assisted,
     or participated in an investigation, proceeding,
     or hearing under this act.

     To   establish    a   prima    facie     case        of   retaliation,     a

plaintiff must show:

          (1) that he engaged in a protected activity;
     (2) that this was known by the defendant; (3)
     that the defendant took an employment action
     adverse to the plaintiff; and (4) that there was
     a   causal   connection  between  the   protected
     activity and the adverse employment action.
     [DeFlaviis v Lord & Taylor, Inc, 223 Mich App
     432, 436; 566 NW2d 661 (1997).]


            A. RETALIATION BASED   ON   OPPOSITION   TO   SEXUAL HARASSMENT

     Plaintiff's first theory is that defendant retaliated

against     her    because    she         opposed         Habkirk's      sexual
                                    10

harassment.           At    "around       the    same      time"       that   plaintiff

allegedly observed sexually harassing behavior by Habkirk

toward female employees, she felt someone touch her on the

back,       near     her    shoulder,          while      she    was     walking       near

Habkirk's          office.1        Plaintiff         testified         that       "I   felt

somebody's hand touching me, and I turned around and hit

the    person."            She   noted     further        that     "it      was    a   very

automatic reaction on my part.                         I felt somebody touching

me, and I just turned around and swung at him."

        We conclude there is insufficient evidence for a juror

reasonably to conclude that by striking Habkirk under these

circumstances         plaintiff          was    opposing        sexual      harassment,

i.e., engaging in a "protected activity" under the Civil

Rights Act.          First, plaintiff acknowledged that Habkirk was

not sexually harassing her at the time she hit him so that

it    is    difficult       to     view    her     conduct       as    responsive       to

"protected activity."               This is underscored by plaintiff's

acknowledgment         that      Habkirk       had     never     sexually         harassed

her.        Second,        there    is    no    evidence        that,       before     this

lawsuit,      plaintiff          ever     sought     to    cast       her    conduct    in


        1
       Plaintiff argued at oral argument before this Court
that it was significant that she was passing a room Habkirk
had just occupied, because it demonstrates that she "knew"
it was Habkirk who touched her.     However, she testified
several times that she felt "somebody" touch her back, that
she "didn't know who was in behind [her]," and that she
simply "swung at whoever it was behind [her]."    (Emphasis
added.)
                             11
hitting Habkirk in terms of opposing sexual harassment at

defendant's        workplace.              Such    a        message       was    never

communicated       to     the    alleged     victims        of    Habkirk's     sexual

harassment or to fellow employees, much less to Habkirk,

management,        union       representatives,         or       public     agencies.

Third, plaintiff testified that she did not even know it

was Habkirk who touched her shoulder until after she struck

him.        That    is,     because        plaintiff        in    her     "automatic"

response to the touching could just as likely have struck

out    at   any    one    of    her    coworkers       as    at    Habkirk,     it   is

difficult to conclude that her action was somehow intended

to communicate a principled opposition to prior incidents

of supervisory misconduct.                  That is, there is simply no

connection         here         between      cause—the            alleged       sexual

harassment—and effect—plaintiff's striking Habkirk.2

       Moreover, although it is not necessary to our analysis

in     this   case,        even       if    plaintiff        were       indisputably

responding to past sexual harassment by hitting Habkirk, we

are not prepared to conclude that any response to conduct


       2
       This lack of connection is underscored by plaintiff's
own testimony that the incidents of sexual harassment that
allegedly prompted her opposition occurred only at "about
the same time" that she struck Habkirk.         Although we
acknowledge that a reasonable juror would be entitled to
conclude that this characterization is compatible with
incidents   of  sexual   harassment  preceding   plaintiff's
hitting Habkirk, the lack of a clear temporal relationship
between the cause and the effect does not well serve
plaintiff's argument.
                             12
prohibited by the Civil Rights Act, no matter how excessive

or       inappropriate       the     response,          including        assaultive

behavior, falls within the act's protections.                           An employee

is not immunized for any type of responsive conduct, no

matter how outrageous or disproportionate, simply because

it     is        connected   with        opposition       to     discrimination.

Obviously, no employee would be protected under the act

from     all      "retaliation"     by    an    employer       for    criminal,    or

sabotaging, or destructive activities simply because these

occurred in response to perceived employer discrimination.

For purposes of analysis under § 701(a), consideration must

be     given       to   separating       the     motivation          underlying     an

employee's conduct and the means by which such motivation

is translated into conduct.

         Under these circumstances, we conclude that no juror

could have reasonably concluded that defendant was engaged

in   a    "protected      activity"       by    opposing    sexual       harassment

when she hit Habkirk.

         Even if the jury here were persuaded that plaintiff

was engaged in a "protected activity" by striking Habkirk,

she has failed to show that defendant knew that she was

engaged in such activity.                  Absent such a showing, there

could       be    no    "retaliation"      on     the     employer's       part    to

anything within the protection of the Civil Rights Act.

While       Habkirk      obviously       would     have     been       aware      that
                                          13

plaintiff had struck him, there was nothing inherent in

this conduct that would have apprised him that plaintiff

was    thereby      opposing    sexual    harassment.           There    is   no

evidence that Habkirk touched plaintiff at that time (or

any other time) in a way that was inappropriate; there is

no evidence that plaintiff herself perceived that Habkirk

touched her in a way that was inappropriate; there is no

evidence that Habkirk reasonably could have discerned from

the nature of plaintiff's response to his touching that she

was    communicating      any    message      of    opposition     to   sexual

harassment; and there is no evidence that plaintiff at any

time       explained    the    "significance"        of   her    behavior     to

Habkirk.

       Nor is there anything else on the part of plaintiff

following this incident that would communicate to anyone

how she had been opposing sexual harassment by striking

Habkirk.       To the extent that she failed to communicate this

supposed purpose to alleged victims of Habkirk's previous

conduct,       to      coemployees,      to        management,     to     union

representatives,         to    public    authorities,      or    to     Habkirk

himself,3 it is difficult to understand how defendant could

have been sufficiently aware that plaintiff was engaged in




       3
        Nor   did   plaintiff    discuss Habkirk's   alleged
inappropriate behavior itself with any of these parties.
                              14
"protected"        activity     so     as   to    be    able    to     "retaliate"

against her for such conduct.

        Under these circumstances, we conclude that no juror

could reasonably have concluded that defendant was aware

that plaintiff had been engaged in "protected activity" by

opposing sexual harassment when she hit Habkirk.

        Therefore,       on     the    basis      either       that     there    is

insufficient        evidence      that      plaintiff      was        engaged    in

protected activity4 or that defendant could have been aware

of such activity, plaintiff has failed to establish a claim

under the Civil Rights Act.                 To the extent that she has

failed to present sufficient evidence that she was engaged

in   protected       activity,        she   has   failed       to     satisfy   the

threshold requirement for coverage under § 701(a); to the

extent that she has failed to present sufficient evidence

that defendant could have been aware of such activity, she

could       not   have   been    the    object     of    "retaliation"      under

§ 701(a).5



        4
       We do not agree with the Court of Appeals that
plaintiff here has raised any specter that she was engaged
in opposition to sexual harassment by her conduct.
        5
        Had plaintiff presented sufficient evidence with
regard to these matters, i.e., shown both that she had been
engaged in a protected activity and that defendant had been
aware of this, she would still have been required to
demonstrate that she suffered an adverse employment action
as a result of her engaging in the protected activity,
i.e., that there was some nexus or causal connection
                             15
                  B. RETALIATION BASED   ON   FILING   A   GRIEVANCE

        Plaintiff's second theory is that defendant retaliated

against her after she filed a grievance claiming national-

origin discrimination.            After being refused a promotion for

the eleventh time, plaintiff filed a grievance with her

union in June 1987, claiming that she was being denied

promotions     because      of    discrimination            based      on    national

origin and color.          Plaintiff claims that, as a result of

filing the grievance, she was denied subsequent promotion

opportunities       and    was     subjected      to        poor    treatment       in

general by Cathcart and the First North supervisors.                              With

regard    to   this      claim,    it   is    undisputed           that     plaintiff

engaged in a protected activity, namely filing a grievance

claiming a violation of the Civil Rights Act.                          In addition,

it is undisputed that defendant was aware that plaintiff

had     engaged     in    this     activity.               Plaintiff        presented

testimony that defendant's retaliatory conduct took place

over an eleven-year period, including acts that took place

after    she   filed      the    instant      action       on   July        21,   1995.


between the adverse employment action and the protected
activity.   See DeFlaviis, supra; West v Gen Motors Corp,
469 Mich 177, 186; 665 NW2d 468 (2003) (applying the
antiretaliation   provisions    of   the    Whistleblowers'
Protection Act, MCL 15.361 et seq.).    See also Shallal v
Catholic Social Services of Wayne Co, 455 Mich 604, 617;
566   NW2d   571   (1997)  (noting   that   "'whistleblower
statute[s][are] analogous to antiretaliation provisions of
other employment discrimination statutes . . .'" [citation
omitted]).
                             16
Defendant argues that, pursuant to the three-year period of

limitations, any claim based on acts occurring before July

21,   1992,     is    barred.      MCL      600.5805(10).      Despite         the

statute of limitations, both the trial court and the Court

of Appeals permitted plaintiff to recover on the basis of

untimely      acts,   or   acts    occurring      before    July    21,    1992,

under     the     so-called       "continuing      violations"       doctrine

adopted in Sumner.            We conclude that, absent evidence of

these acts, there is insufficient evidence to establish a

causal link between the 1987 grievance and any retaliatory

acts occurring within the limitations period.

        The     "continuing       violations"      doctrine        was     first

addressed by this Court in Sumner, supra at 510.                     We began

our     analysis      in   that     case     by   stating     that        it   is

"appropriate . . . in discrimination cases [to] turn to

federal precedent for guidance in reaching our decision."

Id.     at    525.         We     found      particularly     helpful          the

considerations relied on by federal courts in nullifying

the statute of limitations in Title VII of the Civil Rights

Act of 1964.         42 USC     2000e et seq.      We described these as

follows:

             First, [the Civil Rights Act] is a remedial
        statute   whose   purpose   is   to   root   out
        discrimination and make injured parties whole.
        Second, employees are generally lay people, who
        do not know that they must act quickly or risk
        losing their cause of action.    An employee may
        fear reprisal by the employer, or may refer the
                                      17

      matter to a union, which may not take any action
      within the limitation period. Employees may also
      delay filing their complaints in the hope of
      internal resolution or simply to give the
      employer a second chance.      Third, and most
      importantly, many discriminatory acts occur in
      such a manner that it is difficult to precisely
      define when they took place. One might say that
      they unfold rather than occur. [Sumner, supra at
      525-526].[6]

      Sumner also found persuasive the United States Supreme

Court's decision in United Air Lines, Inc v Evans, 431 US

553; 97 S Ct 1885; 52 L Ed 2d 571 (1977).               In Evans, the

United States Supreme Court for the first time addressed

the "continuing violations" doctrine that had been created

by   the   lower   federal   courts   in   order   to   overcome   the

statute of limitations.7       The employee in Evans, a flight



      6
       While it is not necessary to our analysis in this
case, we note that the operation of our statute of
limitations at least partially undercuts the significance
of the factors cited by Sumner.   In Michigan, an employee
does not have to "act quickly or risk losing their cause of
action" under the state Civil Rights Act but has up to
three years to assert a claim in contrast to the 180 days
allowed under Title VII.   This extended period would also
presumably accord an employee sufficient time to seek
"internal resolution or simply to give the employer a
second chance" without endangering her claim. Further, at
least some reasonable observers might presume the three-
year limitations period accords an employee sufficient time
to   determine  that   a  discriminatory   act  has   truly
"unfolded."
      7
       See, e.g., King v Georgia Power Co, 295 F Supp 943,
946 (ND Ga, 1968)(holding that "[t]he failure to allege
that the complaint was filed with the EEOC [Equal
Employment Opportunity Commission] within 90 days of the
alleged unfair employment practices is of no importance,
for the violations of Title VII alleged in the complaint
                            18
attendant with United Air Lines, was fired in 1968 on the

basis    of    a     "no    marriage"         rule        that    was    later       found       to

violate Title VII.               She was rehired by the airline in 1972,

but     was    not        credited       for        her      pre-1968      service          and,

therefore,         was     treated           as     a     new     hire    for        seniority

purposes.          The employee argued that the airline's refusal

to recognize her past service constituted a "present effect

to    the     past    illegal          act    and       therefore        perpetuates         the

consequences         of    forbidden          discrimination."                 Id.     at   557.

Therefore,         she     alleged      that        the      "continuing        violations"

doctrine should be applied to allow her to obtain relief

for   the     now-untimely         1968           firing.         However,       the    United

States      Supreme        Court       held        that      merely      demonstrating           a

"present       effect       to     a     past       act      of       discrimination"            is

insufficient to create a continuing violation.                                  Id. at 558.

"[T]he emphasis should not be placed on mere continuity;

the   critical        question          is    whether           any    present       violation

exists."             Id.         Therefore,             in      order     to     support         a

discrimination claim on a "continuing violations" theory,

an    employee       must    first       demonstrate              the    existence          of   a

present violation.               Since the employee in Evans was unable



may be construed as 'continuing' acts"); Bartmess v Drewrys
USA, Inc, 444 F2d 1186, 1188 (CA 7, 1971) (holding that
"the ninety day limitation is no bar when a continuing
practice of discrimination is being challenged rather than
a single, isolated discriminatory act").
                             19
to demonstrate any violation within the time limitations of

Title VII, her claim was barred as untimely.

       Sumner found the federal precedent persuasive and held

that the "continuing violations" doctrine applied to claims

under both the Civil Rights Act and the Handicappers' Civil

Rights Act, MCL 37.1101 et seq.                This Court adopted the

Evans requirement that an employee must first demonstrate

that a violation has taken place within the limitations

period.      Sumner,    supra   at    536.       Once    an    employee     has

demonstrated this, he or she must then demonstrate either

that   his   or   her   employer     has     engaged    in    a   "policy   of

discrimination" or has engaged in "a series of allegedly

discriminatory acts which are sufficiently related so as to

constitute a pattern . . . ."              Id. at 528.       There are three

factors to consider in determining whether an employer has

been engaged in a series of allegedly discriminatory acts:

            "The first is subject matter.        Do the
       alleged   acts   involve     the  same  type   of
       discrimination, tending to connect them in a
       continuing violation?    The second is frequency.
       Are the alleged acts recurring (e.g., a biweekly
       paycheck) or more in the nature of an isolated
       work assignment or employment decision?       The
       third factor, perhaps of most importance, is
       degree of permanence.      Does the act have the
       degree of permanence which should trigger an
       employee's awareness of and duty to assert his or
       her rights, or which should indicate to the
       employee that the continued existence of the
       adverse consequences of the act is to be expected
       without being dependent on a continuing intent to
       discriminate?"   [Sumner, supra at 538, quoting

                                     20

       Berry v LSU Bd of Supervisors, 715 F2d 971, 981
       (CA 5, 1983).]

       Whatever the merits of the policy crafted by Sumner,

it bears little relationship to the actual language of the

relevant     statue   of     limitations,       MCL   600.5805,     and   MCL

600.5827.      Fundamental canons of statutory interpretation

require us to discern and give effect to the Legislature's

intent   as    expressed     by   the      language    of    its    statutes.

DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d

300 (2000).      If such language is unambiguous, as most such

language is, Klapp v United Ins Group Agency, Inc, 468 Mich

459; 663 NW2d 447 (2003), "we presume that the Legislature

intended the meaning clearly expressed—no further judicial

construction is required or permitted, and the statute must

be enforced as written."          DiBenedetto, supra at 402.

       MCL 600.5805 provides, in pertinent part:

            (1) A person shall not bring or maintain an
       action to recover damages for injuries to persons
       or property unless, after the claim first accrued
       to the plaintiff or to someone through whom the
       plaintiff claims, the action is commenced within
       the periods of time prescribed by this section.

                                        * * *

            (10) The period of limitations is 3 years
       after the time of the death or injury for all
       other actions to recover damages for the death of
       a person, or for injury to a person or property.

       MCL 600.5827 provides that a "claim accrues at the

time   the    wrong   upon   which   the     claim    is    based   was   done


                                     21

regardless of the time when damage results."                          Thus, § 5805

requires a plaintiff to commence an action within three

years       of    each    adverse        employment      act    by    a    defendant.

Section 5805 does not say that a claim outside this three-

year period can be revived if it is somehow "sufficiently

related"         to     injuries       occurring       within   the       limitations

period.          Rather, the statute simply states that a plaintiff

"shall       not"       bring     a     claim    for    injuries      outside       the

limitations period.               Nothing in these provisions permits a

plaintiff to recover for injuries outside the limitations

period when they are susceptible to being characterized as

"continuing violations."                    To allow recovery for such claims

is   simply        to    extend       the    limitations   period         beyond   that

which was expressly established by the Legislature.8



        8
        The dissent is utterly deconstructionist in its
attitude toward statutes of limitations, which is its right
but which attitude nonetheless bears no relationship to
that of the Legislature.   We are told by the dissent, for
example, that we often cannot determine when discriminatory
acts have taken place, when civil rights claims have
accrued or manifested themselves, whether an act of
discrimination is "discrete or nondiscrete," and that even
discrete acts of discrimination may not be readily
identifiable. Post at 12. Doubtless, there are difficult
evidentiary issues in the realm of civil rights as in most
other realms of the law.    Such difficulties, however, do
not constitute authorization for ignoring the express
direction of the Legislature that violations of the Civil
Rights Act are to be subject to a period of limitations,
one that is 2 1/2 years longer than the federal period of
limitations.   The dissent is obviously correct that the
cost of a statute of limitations is that some acts of
discrimination will go unredressed.    This is the cost of
                             22
        An additional flaw in Sumner's reasoning is its unduly

heavy    reliance       on   federal     case   law,      particularly    Evans.

While federal precedent may often be useful as guidance in

this Court's interpretation of laws with federal analogues,

such precedent cannot be allowed to rewrite Michigan law.

The     persuasiveness        of    federal     precedent       can    only    be

considered after the statutory differences between Michigan

and federal law have been fully assessed, and, of course,

even when this has been done and language in state statutes

is     compared    to    similar        language     in    federal     statutes,

federal precedent remains only as persuasive as the quality

of    its    analysis.       Here,      not   only   does    the     "continuing

violations"        doctrine        in    Michigan      conflict       with    the

requirements of §§ 5805 and 5827, but, at least arguably,

the     federal    doctrine        is   given      affirmative     support    by

language in Title VII that is absent from the Civil Rights

Act.        In 1972, Congress amended Title VII to extend the

period within which an employee must file a complaint with

the Equal Employment Opportunity Commission from 90 days to

180 days.         At the same time, Congress imposed a two-year


any statute of limitations, but nonetheless a cost that the
Legislature apparently believes is outweighed by the
benefits of setting a deadline on stale claims. While the
dissent may be correct that the "continuing violations"
doctrine "better protects" the victims of discrimination,
post at 13, and that it is a "highly workable and
preferable" doctrine, post at 14, it is not the doctrine
chosen by the Legislature.
                             23
limit       on    backpay          awards.          Thus,     Congress       implicitly

recognized         an       employee's       right    to     recover       damages      for

discriminatory acts beyond those that occurred within the

180-day          period.            Sumner        noted     that     such        amendment

constituted            an    "implicit       endorsement       of    the     continuing

violation         theory,"         because   Congress       allowed       employees       to

recover damages for discriminatory acts beyond those that

occurred within the 180-day period.                         Sumner, supra at 526.

However,          Sumner       failed        to     note     that        there     is     no

corresponding               provision        in     Michigan        law     that        even

implicitly endorses the "continuing violations" doctrine.

Thus,       rather          than     supporting           Sumner's        holding,       the

existence         of    the    federal       statute       leads    to    the     opposite

conclusion—that              the    "continuing       violations"          doctrine      is

contrary         to     Michigan      law     and,     therefore,         that     federal

precedent should not have been imported into Michigan law.9

        Therefore, we overrule Sumner and hold that a person

must file a claim under the Civil Rights Act within three

years of the date his or her cause of action accrues, as




        9
       We note that the United States Supreme Court recently
rejected the "continuing violations" doctrine for Title VII
claims with regard to discrete acts because it is contrary
to the statute of limitations.     Nat'l R Passenger Corp v
Morgan, 536 US 101; 122 S Ct 2061; 153 L Ed 2d 106 (2002).
                             24
required by § 5805(10).10           That is, "three years" means

three years.       An employee is not permitted to bring a

lawsuit for employment acts that accrue beyond this period,

because   the   Legislature   has    determined   that   such   claims

should not be permitted.11      Whether or not the "continuing



     10
        Although we concur with the dissent that the
doctrine of stare decisis constitutes the "'preferred
course because it promotes the evenhanded, predictable, and
consistent   development  of   legal  principles,   fosters
reliance on judicial decisions and contributes to the
actual and perceived integrity of the judicial process,'"
post at 10-11, quoting Robinson v Detroit, 462 Mich
439,463; 613 NW2d 307 (2000), so also are these values
promoted by the separation of powers doctrine, which holds
that it is the responsibility of the judiciary to respect
the intentions of the Legislature by giving faithful
meaning to the words of the law. In this case, we conclude
that the values identified in Robinson, and invoked by the
dissent, are substantially better served by restoring the
law to its written meaning rather than maintaining the
judicial amendments of Sumner. Not only, in our judgment,
are laws generally made more "evenhanded, predictable and
consistent" when their words mean what they plainly say,
and when all litigants are subject to the equal application
of such words, but laws are also made more accessible to
the people when each of them is able to read the law and
thereby understand his or her rights and responsibilities.
When the words of the law bear little or no relationship to
what courts say the law means (as in Sumner), then the law
increasingly becomes the exclusive province of lawyers and
judges.
     11
        The principal difference between the majority and
the dissent in approaching the interpretative process is
that the majority is content to rely on the actual words
used by the Legislature while the dissent insists on
ascribing its own "purpose" to the act, post at 17 n 6, and
interpreting the act consistent with this statement of
purpose, no matter what barriers to this end have been
inconveniently created by the Legislature in failing to use
words that serve the dissent's self-stated "purpose."
While it can scarcely be gainsaid that the purpose of the
                             25
violations"   exception   of   Sumner   constitutes    a   useful

improvement in the law, there is no basis for this Court to

construct such an amendment.12

     Accordingly,   plaintiff's     claims    of      retaliatory

discrimination arising from acts occurring before June 21,


Civil Rights Act is to "root out discrimination and make
injured   parties  whole,"  id.,   that  purpose   must  be
understood in the context of a competing "purpose" to
ensure that relief under the act be subject to a statute of
limitations. While the dissent apparently views a statute
of limitations as compromising the act's "purpose," i.e.,
its own characterization of such purpose, we believe that
it is better understood as requiring a more precise and
fine-tuned statement of the act's purpose, one predicated
on the intentions of the Legislature rather than on the
preferences of the dissent.   The words of any statute can
be effectively undermined by a sufficiently generalized
statement of "purpose" that is unmoored in the actual
language of the law.
     12
        This Court has rejected similar attempts to modify
statutes of limitations. See Boyle v Gen Motors Corp, 468
Mich   226,  231-232;   661  NW2d  557   (2003)  (rejecting
application of the discovery rule to extend the statute of
limitations in fraud cases); Secura Ins Co v Auto-Owners
Ins Co, 461 Mich 382, 387-388; 605 NW2d 308 (2000) (holding
that the doctrine of judicial tolling cannot be applied in
the absence of statutory language permitting such tolling);
Magee v DaimlerChrysler Corp, 472 Mich 108, 113; 693 NW2d
166 (2005) (noting that the "continuing violations"
doctrine "renders nugatory the period of limitations
established by the Legislature in MCL 600.5805[10]").
While the judicial temptation to relax a statute of
limitations may be understandable in the context of a
lawsuit in which a plaintiff, alleging that he or she has
suffered a serious wrong, has been denied his or her day in
court, the costs involved in terms of undermining the
clarity and predictability of the law, allowing stale
complaints to proceed, and injecting uncertainty into a
myriad of legal relationships, are considerable, not to
mention that a court that does so would be exercising
"legislative," not "judicial," power. See Const 1963, art
3, § 2; art 4, § 1; art 6, § 1.
                             26
1992, are untimely and cannot be maintained.              Without these

untimely     acts,   plaintiff's       claim    is   limited    to     acts

occurring    five    to    eleven     years13   after   she    filed    her

grievance.       In light of this gap, there is insufficient

evidence to allow a reasonable juror to find a causal link

between    the   1987     grievance    and   the   discriminatory      acts

falling within the limitations period.14



     13
        The first actionable claim in 1992 is five years
after   plaintiff's  1987  national-origin   grievance  and
plaintiff claims that she was treated poorly up to the date
of the 1998 trial, which was eleven years after the
grievance was filed.
     14
         Notwithstanding our overruling of Sumner, the
dissent, unlike the majority, would still allow acts
falling outside the period of limitations to be admissible
"'as background evidence in support of a timely claim.'"
Post at 19, quoting Morgan, supra at 113.         The dissent
would enable a plaintiff to claim that an adverse
employment action occurring outside the limitations period
constituted evidence that the employer is committing
current    violations.      Such    an   understanding    would
essentially resurrect the "continuing violations" doctrine
of Sumner through the back door. It would bar an employee
from    directly    recovering     for   untimely    acts    of
discrimination, but allow the employee to indirectly
recover for the same acts.       What practical difference is
there between the Sumner rule, which states that acts of
discrimination that might otherwise be viewed as stale are
cognizable under the act if they are part of a "continuing
violation," and the dissent's rule that would allow stale
violations to be considered "as evidence" of the actionable
violation?    The premises of the dissent and of Sumner are
indistinguishable in that there can be no "discrete" acts
of discrimination, but that such acts must always be
assessed in a continuing context so that we can never know
when an "injury" for statute of limitations purposes has
occurred.    The dissent's rule is as inconsistent with the
Civil Rights Act as the "continuing violations" doctrine of
Sumner, and equally incompatible with the rationale for a
                               27
       Furthermore,     in    order     to     show     causation       in   a

retaliatory     discrimination     case,       "[p]laintiff      must    show

something more than merely a coincidence in time between

protected activity and adverse employment action."                    West v

Gen Motors Corp, 469 Mich 177, 186; 665 NW2d 468 (2003).

There is no evidence to suggest any distinction between the

promotion    denial    that    occurred       while   plaintiff     was      in

Cathcart's    chain    of    command    and   those   denials     involving

supervisors who had no knowledge of plaintiff's grievance.

Five    supervisors,        including     four    who     were      directly

responsible for postgrievance promotion decisions involving

plaintiff, testified that they were unaware that plaintiff

had filed any grievance.         Plaintiff failed to introduce any

evidence to contradict that testimony.                  However, despite

the First North supervisors' lack of knowledge about the

grievance, they treated her requests for promotions in the

same   manner   that   Cathcart    did,       i.e.,   they   denied     them.

Because these supervisors were not aware of the grievance,

they could not have "retaliated" against plaintiff for its

filing.     Further, there is no evidence that plaintiff's job

qualifications changed in any meaningful way in the time


statute of limitations. See Nielsen v Barnett, 440 Mich 1,
8-9; 485 NW2d 666 (1992). It would allow the plaintiff to
resuscitate stale claims—in this case claims more than a
decade old—and require a defendant to defend against such
claims in the face of the passage of time, fading memories,
and the loss of witnesses and evidence.
                             28

between the denial by Cathcart and the denials by the other

supervisors      at     First    North.      Thus,    a    juror       could    not

reasonably      conclude    that    the     reasons   behind          the   denials

within First North were related to the grievance.

        Plaintiff has failed to produce evidence affirmatively

showing, as is her burden, that the reasons underlying the

promotion denial involving Cathcart were any different from

the   denials     involving      supervisors    who       were       unaware   that

plaintiff had filed a grievance.                West, supra at 183-184;

DeFlaviis, supra.         It appears that both the trial court and

the   Court     of     Appeals    identified     a    "causal         connection"

between the grievance and the promotion denials simply on

the basis of timing—that is, because the denials occurred

after     the     grievance,       there      must     be        a     functional

relationship.          This is the kind of post hoc, ergo propter

hoc reasoning rejected in West.                We reject such reasoning

in this case as well.

        Similarly, plaintiff failed to establish that she was

treated poorly by Cathcart and the First North supervisors

as a result of the grievance.                  Plaintiff was unable to

establish       that    Cathcart's        treatment    of        plaintiff      was




                                      29

distinguishable       in     any     way     from       her   treatment       by

supervisors who were unaware of the grievance.15

     First,      plaintiff    claimed       that    Cathcart       treated   her

differently from other employees by refusing to give her a

key to the facility.               However, her supervisor at First

North, who denied any knowledge of the grievance, similarly

refused to give plaintiff a key.              Second, plaintiff claimed

that her work was subjected to greater scrutiny by Cathcart

than that of her coworkers.            However, she also claimed that

another     First    North    supervisor,         who    is   no    longer    an

employee    of    defendant    and     did    not       testify,    wrote    her

several memos a day "unfairly attacking" her performance.

Finally, both plaintiff and the Court of Appeals found it

noteworthy    that    she    was    moved    to    a    "disgusting"    office

after the transfer to First North.                 However, the supervisor

who assigned her that office testified that he was unaware

of the grievance and had informed her that it was only a

temporary     situation.            Under    these       circumstances,       we

conclude that no juror could have reasonably concluded that

plaintiff was subjected to poor treatment because she had




     15
         In fact, Cathcart testified that he did                             not
remember, and would not have been troubled by,                               the
grievance.  Further, plaintiff admitted that, during                         the
period of alleged poor treatment, Cathcart intervened                         on
her behalf when another supervisor sought to change                          her
work hours.
                           30

been engaged in "protected activity" by filing a grievance

claiming national-origin discrimination.

     Finally,    plaintiff    has   failed   to   demonstrate      that

Cathcart's alleged derogatory comments based on national

origin    establish   any     causal     connection      between   the

grievance and the adverse employment action.             In order to

establish such a connection, plaintiff needed to show that

the comments demonstrated Cathcart's discriminatory animus

toward her and that, as a result of such animus, Cathcart

retaliated against her for filing the grievance.

     Plaintiff    claims     that   Cathcart      made    a   racially

derogatory    statement      regarding    Indians.16          Plaintiff

testified that Cathcart responded to the news that her son

had been admitted to a medical program by stating, "I don't

know how many Indian doctors we need."17 This statement does

not pertain in any way to the promotion process; neither is

it directed toward plaintiff in terms of evaluating her



     16
        Cathcart allegedly made another racially derogatory
statement regarding Indians in 1989; however, it is outside
the limitations period.       We also note that Cathcart
allegedly made two statements concerning African-Americans.
These seem to have little bearing in this case because
plaintiff is not African-American.    Further, one of these
statements occurred at least two years before plaintiff's
grievance regarding national-origin discrimination and the
other occurred approximately nine years afterward.
     17
       While plaintiff did not indicate when this statement
was made, a juror could infer that it was made sometime
between 1992 and 1995.
                             31

work     performance           or   threatening        any       future       treatment     of

her.          See    Sniecinski,         supra        at     136        n    8.      However

inappropriate or ill-informed this statement, it is better

characterized, in our judgment, as a "stray comment" than

as reflective of any "pattern of biased comments . . . ."18

Id.

        More to the point, for the same reason that plaintiff

here has failed to demonstrate that Cathcart's treatment of

her did not vary in any appreciable way from her treatment

by other supervisors—concerning whom there is no evidence

of     even    such      "stray      comments"—we            do    not       believe     that

plaintiff       has       demonstrated         that        she     was       subjected     to

denials       of     promotions         or     otherwise          poor       treatment     by

defendant       on       the    basis    of     her     grievance.                Again,    we

reiterate       that       the      question      is       not     the       propriety      or

seemliness          of   Cathcart's          statements,          but       merely   whether

such statements establish a causal link between plaintiff's

grievance and her subsequent treatment by defendant.

        In light of insufficient evidence that plaintiff was

not     promoted         or    otherwise        treated          poorly       because      she

engaged in a "protected activity," i.e., having filed a

grievance           against         defendant      alleging                 national-origin


        18
        This conclusion is underscored by the fact that the
jury, after learning of all these statements, concluded
that plaintiff had not been discriminated against on the
basis of national origin.
                             32
discrimination,        plaintiff     has        failed   to   establish       a

retaliation claim under the Civil Rights Act.

                               IV. Conclusion

       We conclude that the "continuing violations" doctrine

is contrary to the language of § 5805 and hold, therefore,

that    the    doctrine        has   no     continued       place     in     the

jurisprudence     of    this     state.          Accordingly,       Sumner   is

overruled.     Further, we conclude that there is insufficient

evidence to support plaintiff's claims of retaliation based

on her opposition to sexual harassment and those acts by

her employer following the grievance that were within the

statutory limitations period.              Accordingly, we reverse the

judgment of the Court of Appeals and remand the matter to

the    trial   court     for     entry     of    judgment     in    favor    of

defendant.

                                         Stephen J. Markman
                                         Clifford W. Taylor
                                         Maura D. Corrigan
                                         Robert P. Young, Jr.




                                     33

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


                                 SUPREME COURT 



SHARDA GARG,

     Plaintiff-Appellee/Cross-Appellant,

v                                                                        No. 121361

MACOMB COUNTY COMMUNITY MENTAL HEALTH SERVICES,

     Defendant-Appellant/Cross-Appellee.

_______________________________

CAVANAGH, J. (dissenting).

     I agree with the majority’s conclusion that there was

insufficient evidence of retaliation based on plaintiff’s

alleged    opposition       to    the     sexual      harassment     of       her   co-

workers.

     I     disagree      with       the     majority’s        conclusion            that

plaintiff       presented    insufficient          evidence       that        she   was

retaliated against for filing a grievance.                           Moreover, I

disagree with the majority’s decision to overrule Sumner v

Goodyear    Tire    &   Rubber      Co,    427     Mich    505;    398    NW2d       368

(1986),    and    abolish     the       continuing      violations        doctrine.

Finally,    I     disagree       with    the    majority’s        rationale         that

because     the    continuing           violations        doctrine       no       longer

applies,    evidence        of     prior       acts    must    necessarily            be

excluded     from       consideration.                Accordingly,            I     must

respectfully dissent.
  I. Plaintiff Presented Sufficient Evidence of Retaliation
                    for Filing a Grievance

       The    Michigan     Civil    Rights       Act   “is   aimed   at     ‘the

prejudices     and     biases’     borne    against    persons    because    of

their membership in a certain class, and seeks to eliminate

the     effects      of    offensive        or    demeaning      stereotypes,

prejudices, and biases.”            Miller v C A Muer Corp, 420 Mich

355, 363; 362 NW2d 650 (1984) (citations omitted).                    To this

end,    the    Civil      Rights    Act,    MCL    37.2701,      provides    in

pertinent part:

            Two or more persons shall not conspire to,
       or a person shall not:

            (a) Retaliate or discriminate against a
       person because the person has opposed a violation
       of this act, or because the person has made a
       charge, filed a complaint, testified, assisted,
       or participated in an investigation, proceeding,
       or hearing under this act.

The Court of Appeals has observed that the purposes of the

retaliation provisions of the act are “to protect access to

the machinery available to seek redress for civil rights

violations and to protect operation of that machinery once

it has been engaged.”            DeFlaviis v Lord & Taylor, Inc, 223

Mich App 432, 440; 566 NW2d 661 (1997) (citation omitted).

       This Court has yet to formally delineate the prima

facie elements of a retaliation claim under the Michigan

Civil    Rights   Act.       The    Court    of    Appeals,    however,     has




                                       2

relied    on    federal      precedent          to    formulate       its     own   test.

Today, the majority adopts the Court of Appeals test as its

own.     See ante at 10-11.           Thus, to establish a prima facie

case of unlawful retaliation under the Civil Rights Act, a

plaintiff must show: “(1) that he engaged in a protected

activity; (2) that this was known by the defendant; (3)

that the defendant took an employment action adverse to the

plaintiff;      and    (4)    that    there           was     a    causal    connection

between the protected activity and the adverse employment

action.”        DeFlaviis, supra at 436, citing Polk v Yellow

Freight Sys, Inc, 876 F2d 527, 531 (CA 6, 1989), Booker v

Brown & Williamson Tobacco Co, Inc, 879 F2d 1304, 1310 (CA

6, 1989), and Kroll v Disney Store, Inc, 899 F Supp 344,

348    (ED     Mich,   1995).         Using           these       elements,    I    would

conclude that the trial court properly denied defendant’s

motion for judgment notwithstanding the verdict (JNOV) on

plaintiff’s      claim       that    she        was    retaliated       against       for

filing a grievance against her supervisor.

       As noted by the majority, the first two elements of

the    test     are    satisfied       because              plaintiff       engaged    in

protected activity and defendant was aware that plaintiff

had engaged in this activity.                   See ante at 17.             Moreover, I

would conclude that sufficient evidence was presented on

the third and fourth elements; namely, there was sufficient


                                           3

evidence   that     defendant   took    adverse    employment   action

against plaintiff and there was a causal connection between

the   filing   of   the   grievance    and   the   adverse   employment

action.    With regard to these elements, I find the Court of

Appeals characterization of the evidence persuasive.               The

Court of Appeals noted:

            [P]laintiff    sufficiently   established    the
      elements of a retaliation claim by way of her
      evidence that (1) plaintiff filed a grievance
      alleging racial discrimination in June 1987; (2)
      Cathcart, a supervisor, knew about the grievance;
      (3) after filing the grievance, plaintiff failed
      to receive the next promotion that she sought,
      posted in December 1988, despite being qualified
      for the position; (4) plaintiff failed to receive
      seven total promotions between 1989 and 1997,
      despite being qualified for the positions; (5)
      individuals     less    qualified    than    plaintiff
      received promotions while plaintiff did not; (6)
      in   1994,    plaintiff    was   transferred    to   a
      windowless office from which she could hear
      noises emanating from the adjacent bathroom,
      while persons more senior [sic] to plaintiff
      received better offices; (7) in 1996, Cathcart
      made a statement disparaging to blacks; (8)
      Cathcart made another comment disparaging to
      Indians; (9) Cathcart reprimanded plaintiff but
      not others for minor infractions; (10) Cathcart
      ignored plaintiff in staff meetings and treated
      her poorly in the hallways; (11) in 1984 or 1985,
      Cathcart used the word “n-----” in referring to
      blacks; and (12) Cathcart remained in plaintiff’s
      chain    of    command     throughout    the    years.
      [Unpublished opinion per curiam of the Court of
      Appeals, issued March 29, 2002 (Docket No.
      223829).][1]



      1
       I disagree with the majority’s contention that these
statements should be considered mere stray remarks.

                                  4

        A     motion    for       JNOV      should        be   granted      only    if   the

evidence,         viewed         in   the     light        most      favorable     to    the

nonmoving party, fails to establish a claim as a matter of

law.         Orzel v Scott Drug Co, 449 Mich 550, 557-558; 537

NW2d        208   (1995).          This      Court    reviews        de    novo    a    trial

court’s decision to grant or deny a motion for JNOV, and

likewise reviews the evidence and all reasonable inferences

in the light most favorable to the nonmoving party.                                     Craig

v    Oakwood        Hosp,    471      Mich    67,     77;      684   NW2d    296    (2004).

Under        this    standard,         I     cannot        say    that      the    evidence

detailed by the Court of Appeals fails to establish a claim

of    retaliation           as    a    matter        of    law.        Moreover,        while

reasonable          jurors       could       reach    different           conclusions,     I

cannot say that no reasonable juror could conclude that

plaintiff was retaliated against for filing a grievance.

Thus, I would hold that the trial court properly denied

defendant’s motion for JNOV on the retaliation theory.2



Moreover, I find wholly unpersuasive the majority’s logic
that the derogatory statements concerning African-Americans
are irrelevant because plaintiff is Indian.
        2
        As noted previously, I tend to agree with the
majority that plaintiff presented insufficient evidence
that she was retaliated against for her alleged opposition
to the sexual harassment of her coworkers.       However, I
disagree with the majority’s election to decide, in dictum,
whether responsive physical behavior constitutes protected
activity.    Given the majority’s ultimate conclusion, this
portion   of    the  majority’s  opinion   is  unnecessary.

                                               5

      II. Sumner and the Continuing Violations Doctrine

     The     Michigan      Civil    Rights     Act    contains      no   internal

statute      of     limitations.           Nonetheless,      this    Court   has

applied the general three-year limitations period set forth

in MCL 600.5805 to claims brought under the act.                             See,

e.g., Mair v Consumers Power Co, 419 Mich 74; 348 NW2d 256

(1984).      However, in recognition that such claims tend to

“unfold rather than occur,” this Court unanimously adopted

a   narrow        exception   to     the     statute    of    limitations—the

continuing violations doctrine.               Sumner, supra at 526.          The

continuing violations doctrine dictates that unlawful acts

that occur beyond the period of limitations are actionable,

as long as the acts are sufficiently related to constitute

a pattern and one of the acts occurred within the period of

limitations.

     As    noted      by   the     Sumner    Court,    the    federal      courts

developed the continuing violations doctrine as a narrow

exception to Title VII’s short limitations period.                           This

Court detailed the reasons for the exception, reasons that

still ring true today:

          These courts expressed concern with a number
     of factors which they felt militated against a
     strict application of the limitation requirement.


Moreover, although this issue was raised by the Attorney
General as amicus curiae, this issue was neither raised
below nor specifically briefed by the parties.

                                        6

         First, Title VII is a remedial statute whose
         purpose is to root out discrimination and make
         injured parties whole.    Second, employees are
         generally lay people, who do not know that they
         must act quickly or risk losing their cause of
         action.   An employee may fear reprisal by the
         employer, or may refer the matter to a union,
         which may not take any action within the
         limitation period.    Employees may also delay
         filing their complaints in the hope of internal
         resolution or simply to give the employer a
         second chance. Third, and most importantly, many
         discriminatory acts occur in such a manner that
         it is difficult to precisely define when they
         took place.     One might say that they unfold
         rather than occur. [Id. at 525-526.]

         In light of the United States Supreme Court’s decision

in United Air Lines, Inc v Evans, 431 US 553; 97 S Ct 1885;

52   L    Ed   2d   571   (1977),   this   Court   observed   that   the

continuing violations doctrine generally consists of two

subtheories:

              The first subtheory involves allegations
         that an employer has engaged in a continuous
         policy of discrimination.   In such a case, the
         plaintiff is alleging that “he is challenging not
         just discriminatory conduct which has affected
         him, but also, or alternatively, the underlying
         employment system which has harmed or which
         threatens to harm him and other members of his
         class.”

              The second subtheory, the “continuing course
         of conduct” or “series of events” situation is
         relevant where an employee challenges a series of
         allegedly    discriminatory    acts    which  are
         sufficiently related so as to constitute a
         pattern, only one of which occurred within the
         limitation period.       [Sumner,   supra at 528
         (citations omitted).]




                                     7

Here,     plaintiff   is    alleging       that   defendant     retaliated

against her through a continuing course of conduct.                  Thus,

the second subtheory applies to this case.

        In determining whether a continuing course of conduct

exists under the second subtheory, this Court adopted the

approach set forth by the Fifth Circuit Court of Appeals:

             “The first is subject matter. Do the alleged
        acts involve the same type of discrimination,
        tending   to    connect   them   in   a   continuing
        violation?     The second is frequency. Are the
        alleged    acts   recurring    (e.g.,   a   biweekly
        paycheck) or more in the nature of an isolated
        work assignment or employment decision?          The
        third factor, perhaps of most importance, is
        degree of permanence.       Does the act have the
        degree of permanence which should trigger an
        employee’s awareness of and duty to assert his or
        her rights, or which should indicate to the
        employee that the continued existence of the
        adverse consequences of the act is to be expected
        without being dependent on a continuing intent to
        discriminate?”     [Sumner, supra at 538, quoting
        Berry v LSU Bd of Supervisors, 715 F2d 971, 981
        (CA 5, 1983).]

        Under these circumstances, I would conclude that the

continuing     violations     doctrine        applies    to    plaintiff’s

retaliation claim.         First, the acts involve the same type

of continuing violation: repeated denials of promotions and

disparate     treatment      in     retaliation     for       engaging   in

protected activity.        Second, defendant’s acts occurred with

frequency:      plaintiff     was         consistently    denied     every

promotion she applied for from the date the grievance was




                                     8

filed.     Finally, on these facts, the consistent denials of

promotions and disparate treatment did not have the degree

of permanence that would necessarily preclude application

of the continuing violations doctrine.                      Plaintiff did not

suspect that the impetus for the adverse actions was the

filing     of    the    grievance           until    much     later.            While

retaliatory conduct may be considered a discrete act under

some circumstances, the facts of this case demonstrate that

retaliation is often just as subtle and hard to detect as

discrimination.          Thus,      I       would    apply    the      continuing

violations      doctrine      and   conclude        that     all    the    adverse

employment actions taken by defendant against plaintiff are

actionable.

         III. The Majority’s Decision to Overrule Sumner

     The majority reasons that Sumner and the continuing

violations doctrine have no place in Michigan law because

they bear little relationship to the actual language of MCL

600.5805 and 600.5827.              Rather, MCL 600.5805 “requires a

plaintiff to commence an action within three years of each

adverse employment act by a defendant. . . . Nothing in

these    provisions      permits        a     plaintiff      to     recover       for

injuries    outside      the    limitations         period    when       they    are

susceptible       to     being       characterized           as      ‘continuing

violations.’”          Ante    at   22-23.          Moreover,      the    majority


                                        9

concludes that Sumner “unduly” relied on federal case law.

Id.   at    23.       According     to     the    majority,      the    continuing

violations        doctrine     is     arguably        given   support      by    the

language of Title VII, unlike the language of Michigan’s

statutory provisions.           Additionally, Congress amended Title

VII to impose a two-year limit on recovering back pay and,

thus,      implicitly    endorsed         the     doctrine.        The    majority

posits that there is no corresponding provision in Michigan

law that even implicitly endorses the continuing violations

doctrine.         Accordingly, the majority overrules Sumner and

holds    that     a   person   must       file    a   claim   under      the    Civil

Rights Act within three years of the date his or her cause

of action accrues.

        “[T]his Court has consistently opined that, absent the

rarest      circumstances,          we     should       remain     faithful        to

established precedent.”               Brown v Manistee Co Rd Comm, 452

Mich 354, 365; 550 NW2d 215 (1996).                    The doctrine of stare

decisis is “‘the preferred course because it promotes the

evenhanded,        predictable,          and     consistent      development      of

legal principles, fosters reliance on judicial decisions,

and contributes to the actual and perceived integrity of

the judicial process.’”             Robinson v Detroit, 462 Mich 439,

463; 613 NW2d 307 (2000) (citation omitted).                           The current

Court      has    detailed     four      principles      to   consider         before


                                          10

established          precedent      is     overruled:      “(1)      whether        the

earlier       case     was    wrongly       decided,[3]       (2)    whether        the

decision       defies        ‘practical          workability,’       (3)     whether

reliance interests would work an undue hardship, and (4)

whether changes in the law or facts no longer justify the

questioned decision.”               Pohutski v City of Allen Park, 465

Mich 675, 694; 641 NW2d 219 (2002).                       In my view, none of

these       factors    weighs    in      favor    of   overruling     Sumner        and

abolishing the continuing violations doctrine.

        First, I cannot say that Sumner was wrongly decided.

Like its federal counterpart, the Civil Rights Act “is a

remedial           statute     whose       purpose       is     to     root         out

discrimination and make injured parties whole.”                              Sumner,

supra at 525.          Because the Civil Rights Act is remedial in

nature,       it     should    be     liberally        construed.          Kassab     v

Michigan Basic Prop Ins Ass’n, 441 Mich 433, 467; 491 NW2d

545 (1992) (Cavanagh, C.J., dissenting); see also Kassab,

supra at 451 (Mallett, J., dissenting).

        In Sumner, supra at 526, this Court astutely observed

that “many discriminatory acts occur in such a manner that

it is difficult to precisely define when they took place.”



        3
       Is not this “principle” a given?   As I have noted
previously, it would seem strange indeed for a “correctly
decided” decision to be trashed.

                                           11

Indeed,    determining    when     a    claim       accrues    or   occurs   is

surprisingly difficult because violations of the act may

not manifest themselves except at the end of a lengthy

period.       Whether     a   particular            act   is    discrete      or

nondiscrete    often     depends       on    the    circumstances     of     the

individual case.       And even so-called discrete acts may not

always be readily identifiable.               In fact, the United States

Supreme    Court   recently      left        open   the   question    whether

discriminatory employment actions are subject to some sort

of discovery rule.       The Court noted that

     [t]here may be circumstances where it will be
     difficult to determine when the time period
     should begin to run. One issue that may arise in
     such circumstances is whether the time begins to
     run when the injury occurs as opposed to when the
     injury reasonably should have been discovered.
     But this case presents no occasion to resolve
     that issue.   [Nat’l R Passenger Corp v Morgan,
     536 US 101, 114 n 7; 122 S Ct 2061; 153 L Ed 2d
     106 (2002).]

     The continuing violations doctrine remains a salutary

tool because, as a practical matter, it may be difficult to

determine when a violation of the act was committed or when

a civil rights claim accrues for purposes of MCL 600.5827.4




     4
         MCL 600.5827 provides:

     Except as otherwise expressly provided, the period of
limitations runs from the time the claim accrues.      The
claim accrues at the time provided in sections 5829 to
5838, and in cases not covered by these sections the claim

                                       12

Simply stated, a victim of discrimination may not be aware

that he or she is being or has been discriminated against

until after the period of limitations has expired.                        The

continuing violations doctrine better protects the victim

and does not reflexively give the discriminating party the

benefit of judicial hindsight.              However, the Sumner Court

was careful to explain that not every prior act will be

actionable under the continuing violations doctrine.                      Even

though discriminatory acts may be difficult to ascertain,

the continuing violations doctrine will not apply if there

is not a pattern, the acts do not involve the same subject

matter,    the   acts    do   not   occur    with   frequency,       or   the

plaintiff should have been aware that his or her rights

under the act were being violated.                  In my view, Sumner

remains a sound decision because it seeks to ameliorate the

effects of strictly applying the limitations period where

it is difficult to ascertain exactly when a civil rights

claim accrues.

     Second,     Sumner   does not defy practical workability.

As noted above, just the opposite is true.               Because it is

often     extremely     difficult    to     ascertain   when     a    claim

accrues, application of the continuing violations doctrine



accrues at the time the wrong upon which the claim is based
was done regardless of the time when damage results.

                                    13

proceeds        on     a    case-by-case         basis.       The       doctrine       is

generally analyzed under two distinct subtheories and this

Court has set forth a clear three-factor test to assist

courts     in        determining     whether       a   continuing            course   of

discriminatory conduct exists.                    Sumner, supra at 538.                In

my view, Sumner remains a highly workable and preferable

decision.

      Third, overruling Sumner would work an undue hardship

because of the reliance interests placed on that decision.

Sumner has been entrenched in this state’s jurisprudence

for nearly twenty years.                  Further, as a practical matter,

the      continuing           violations         doctrine        encourages           lay

employees, who may not be supremely confident that their

rights are being violated, to seek internal resolution of

their suspected complaints.                Needless to say, such a course

of action is advantageous to all persons involved.                                    In

reliance on Sumner, an employee could rest assured that

possible    violations          of   the       Civil   Rights     Act        would    not

become    stale        while    attempting        to   resolve        the     complaint

internally.            Moreover,     employees’        fear      of    reprisals      by

employers        was       greatly     diminished         because       of     Sumner’s

safeguards.                Because   of    Sumner,        both        employees       and

employers        were       relieved      of     the   burden         of     being     on

“litigation watch” at the first sign of trouble.                              Employees


                                           14

and employers have relied on Sumner for quite some time and

conducted their affairs and operations accordingly.

       In   my     view,    affirming     the        principles    announced     in

Sumner would work far less of a hardship than overruling

that    decision.           Indeed,      opponents        of     the    continuing

violations doctrine should be careful what they wish for.

Overruling Sumner may actually encourage employees to run

to court at the first sign of trouble.                         This will put a

strain on everyone involved in the process—the employee,

the employer, and the courts.                   Such inherent tension was

alleviated        by   Sumner      and         the     continuing       violations

doctrine.        Thus, because the citizens of this state have

justifiably relied on Sumner for nearly two decades and

overruling that decision would unnecessarily disrupt these

reliance interests, I would refrain from overruling Sumner.

       Fourth and finally, there has been no change in the

law or facts that has cast doubt on the wisdom of Sumner.

Indeed,     this    Court    has   consistently          cited    and   suggested

that Sumner’s reliance on federal precedent was warranted.

See, e.g., Chambers v Trettco, Inc, 463 Mich 297, 313; 614

NW2d    910      (2000)     (“We   are     many        times   guided     in    our

interpretation of the Michigan Civil Rights Act by federal

interpretations of its counterpart federal statute.                            See,

e.g., Sumner v Goodyear Tire & Rubber Co, 427 Mich 505,


                                         15

525;        398   NW2d   368   (1986).”)5    Thus,   there   has   been   no

seismic shift, except for the makeup of this Court, that

would        warrant      overruling    Sumner   and    abolishing        the

continuing violations doctrine.

        In sum, I disagree with the majority’s decision to

overrule Sumner.           I believe that the continuing violations

doctrine remains a venerable approach to analyzing claims

brought under the Michigan Civil Rights Act.6




        5
       See also Radtke v Everett, 442 Mich 368, 381-382; 501
NW2d 155 (1993) (“While this Court is not compelled to
follow federal precedent or guidelines in interpreting
Michigan law, this Court may, ‘as we have done in the past
in discrimination cases, turn to federal precedent for
guidance in reaching our decision.’ Sumner v Goodyear Tire
& Rubber Co, 427 Mich 505, 525; 398 NW2d 368 (1986).”);
Stevens v McLouth Steel Products Corp, 433 Mich 365, 375;
446 NW2d 95 (1989) (“This Court has frequently drawn from
federal court precedent in interpreting other aspects of
the Civil Rights Act. See, e.g., Sumner v Goodyear Tire &
Rubber    Co,   427   Mich   505,   525;    398   NW2d   368
(1986) . . . .”).
        6
       The majority posits that my conclusion to reaffirm
the principles announced in Sumner stems from my preference
to interpret the Civil Rights Act in harmony with my “own,”
“self-stated” “characterization” of the purpose of the act.
Ante at 26-27 n 11. As detailed in Sumner, supra at 525,
the purpose of the act is “to root out discrimination and
make injured parties whole.”       In the same footnote,
however, the majority acknowledges that Sumner’s stated
purpose of the act is undeniable.         Nonetheless, the
majority concludes that this undeniable purpose must heed
another “competing” purpose–“to ensure that relief under
the act be subject to a statute of limitations.”    Ante at
27 n 11.   Accordingly, the majority would “fine-tune” the
act’s undeniable purpose and restate the “precise” purpose
of the Civil Rights Act as follows: to intermittently root

                                       16

       IV. The Majority’s Application of its New Rule is

                      Fundamentally Flawed 


       Even assuming the continuing violations doctrine no

longer pertains, the majority’s additional reasoning cannot

withstand       scrutiny.       Under      the     continuing      violations

doctrine, unlawful acts that occur beyond the period of

limitations       are   actionable,     as       long   as   the   acts    are

sufficiently related to constitute a pattern and one of the

acts       occurred   within   the   period       of    limitations.       The

majority properly acknowledges this point of law.7                        Thus,

the natural consequence of overruling Sumner and abolishing

the continuing violations doctrine is that acts occurring

beyond the period of limitations are no longer actionable.



out discrimination and make injured parties somewhat whole.
I prefer the undeniable purpose previously articulated by
this Court because it is more consistent with the
Legislature’s intent.   While the majority claims that the
words of any statute can be undermined by considering the
statute’s purpose, today’s decision demonstrates that the
opposite proposition is equally true.    Namely, a remedial
statute can be tortured by a preference to ignore, not
effectuate, the Legislature’s purpose in enacting the
statute.
       7
       “Nothing in these provisions permits a plaintiff to
recover for injuries outside the limitations period when
they are susceptible to being characterized as ‘continuing
violations.’   To allow recovery for such claims is simply
to extend the limitations period beyond that which was
expressly established by the Legislature.”      Ante at 23
(emphasis added). “An employee is not permitted to bring a
lawsuit for employment acts that accrue beyond this period,
because the Legislature has determined that such claims
should not be permitted.” Id. at 26 (emphasis added).

                                     17

Yet   the    majority        goes     even       further      and    reasons      that

evidence      of      acts        occurring       outside      the       period     of

limitations        must    be     excluded.8         Such      a    conclusion      is

fundamentally flawed.

      For    example,        in    Morgan,       supra   at    105,      the    United

Stated      Supreme       Court     held      that   Title         VII    “precludes

recovery for discrete acts of discrimination or retaliation

that occur outside the statutory time period.”9                                While I

disagree with the Morgan Court’s holding, it is important

to observe the Court’s subsequent rationale.                             In light of


      8
        “[W]e conclude that, once evidence of acts that
occurred outside the statute of limitations period is
removed from consideration, there was insufficient evidence
of   retaliation  based   on  either  plaintiff’s   alleged
opposition to sexual harassment or her filing of a
grievance . . . .”     Ante at 1-2 (emphasis added).    “We
conclude that, absent evidence of these acts, there is
insufficient evidence to establish a causal link between
the 1987 grievance and any retaliatory acts occurring
within the limitations period.”      Id. at 18 (emphasis
added).
      9
       However, I must note that the Morgan Court held that
the continuing violations doctrine still applies to hostile
work environment claims. “We also hold that consideration
of the entire scope of a hostile work environment claim,
including behavior alleged outside the statutory time
period, is permissible for the purposes of assessing
liability, so long as any act contributing to that hostile
work environment takes place within the statutory time
period.”   Id. (emphasis added).   Here, the majority does
not attempt to exercise the same degree of prudence and
reason.   Rather, the majority simply concludes that all
claims brought under the Civil Rights Act, whether premised
on discrete or nondiscrete acts, are subject to the statute
of limitations.

                                           18

its holding, the           Morgan     Court noted, “As we have held,

however, this time period for filing a charge is subject to

equitable doctrines such as tolling or estoppel.”                              Id. at

113.    Importantly, the Court also reasoned, “Nor does the

statute      bar    an    employee     from      using     the    prior    acts      as

background evidence in support of a timely claim.”                                  Id.

(emphasis added).           This rationale comports with the natural

consequences         of    abolishing           the   continuing         violations

doctrine: prior acts outside the period of limitations are

not    actionable         (i.e.,     cannot      serve      as   the     basis      for

imposing liability), but these acts may still be used as

background evidence to support a timely claim.                            Thus, the

majority’s         conclusion      that    acts       occurring        outside      the

limitations period must be “removed from consideration” is

unacceptable.        Ante at 2.

       I disagree with the majority’s stated conclusion that

evidence of acts occurring outside the limitations period

must    be     “removed       from     consideration”            because,      as     a

practical matter, such evidence often must be considered,

as the majority’s rationale confirms.                       While certainly not

a novel approach, I believe that it is entirely proper to

examine      relevant      evidence    even       though     such   evidence        may

itself not be actionable.              Stated differently, the decision

whether      to    admit    certain       evidence     is    within      the     trial


                                          19

court's sound discretion and will not be disturbed absent

an abuse of discretion.                   See, e.g., People v McDaniel, 469

Mich 409, 412; 670 NW2d 659 (2003).                          Therefore, even though

so-called untimely acts may not be actionable under the

majority’s              approach,       such    acts       may       be     considered         as

relevant       background           evidence      in    most         instances.          In    my

view,        the        majority     misunderstands             the       consequences         of

overruling Sumner.

        In    response,           the    majority       claims         that       the   United

States       Supreme        Court’s       rationale        in    Morgan         “essentially

resurrect[s] the ‘continuing violations’ doctrine through

the back door.”                 Ante at 28 n 14.           The majority moans that

consideration              of     background         evidence          would       allow       an

employee           to     indirectly       recover       for         past       acts.         The

majority,          transfixed       with       destroying        every      shred       of    the

additional              protections         afforded            by        the     continuing

violations doctrine, has lost sight of the bigger picture.

The     majority           admittedly          fails    to       see        the    practical

difference between the Sumner rule and the logic employed

by the Morgan Court.                    I would simply urge reexamination of

these opinions because the differences are quite clear.

        The    United        States       Supreme      Court     concluded          that      the

result of abolishing the continuing violations doctrine is

that      untimely              claims     are       not        actionable,             period.


                                               20

Inexplicably,         however,       the    majority          feels    compelled        to

conclude that any evidence that may have once constituted a

claim under the Civil Rights Act, but is now barred by the

statute of limitations, may never be admitted.                              But, again,

this is not the majority’s decision to make.                            If the trial

court determines that evidence of the now time-barred claim

is    relevant       to    the    timely    claim,      such     evidence         may   be

admitted as background evidence, but may not serve as the

basis    for    any       damage    award.        Sometimes       the       time-barred

claim will not be relevant and the trial court may conclude

that such background evidence is unnecessary.                                 In other

instances,       the       trial      court      may      exercise          its    sound

discretion and admit such evidence.                     The majority, however,

oversteps its bounds when it concludes that such evidence

may     never    be       relevant     and,      therefore,           may    never      be

considered.          I do not know how the Morgan decision could

make this point of law any clearer.

        In    sum,    I    believe     that      the    majority’s          resolve     to

dismantle the continuing violations doctrine has led it to

an illogical result.               The majority is essentially arguing

that, in Morgan, the United States Supreme Court attempted

to    resurrect       the        continuing      violations       doctrine         after

having       overruled      the    doctrine.           This    argument       makes     no

sense.        Rather, I believe that the Morgan Court properly


                                           21

acknowledged       that     overruling         the   continuing       violations

doctrine    means    that    untimely          claims   are   not    actionable,

but, in some instances, the trial court may determine that

evidence    of     these    untimely      claims     may   be     admissible   to

provide necessary context.

                               V. Conclusion

     I     would    hold     that    plaintiff          presented     sufficient

evidence for a reasonable juror to conclude that she was

retaliated against for filing her grievance.                        Moreover, I

would affirm the principles announced in Sumner, and apply

the continuing violations doctrine to plaintiff’s claim of

retaliation based on the grievance theory.                        Finally, even

if I were to agree with the majority that the continuing

violations       doctrine     is    no    longer        viable,     the   natural

consequence of abolishing that doctrine is not to exclude

untimely acts from consideration.                    Rather, abolishing the

continuing violations doctrine simply means that untimely

acts are not actionable.10

                                          Michael F. Cavanagh
                                          Marilyn Kelly




     10
        In light of the majority’s resolution of this case,
I too do not reach the other issues raised on appeal or in
plaintiff’s cross-appeal.

                                         22

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


                               SUPREME COURT 



SHARDA GARG,

      Plaintiff-Appellee/Cross-Appellant,

v                                                                    No. 121361

MACOMB COUNTY COMMUNITY HEALTH SERVICES,

      Defendant-Appellant/Cross-Appellee,

and

LIFE CONSULTATION CENTER,

     Defendant.
_______________________________

WEAVER, J. (dissenting).

      I agree with the reasoning and conclusions of Justice

Cavanagh’s       dissenting     opinion.        This    Court    unanimously

adopted    the     continuing    violations      doctrine       in    Sumner   v

Goodyear    Tire    &   Rubber   Co,    427    Mich    505;    398    NW2d   368

(1986). Justice Brickley authored Sumner, and was joined by

Justices    Cavanagh,     Levin,       and    Archer.         Justice   Riley,

joined by Justice Boyle, concurred in the adoption of the

doctrine, but disagreed with the majority’s application of

it to the facts of the case.             Chief Justice Williams, in a

separate opinion, also concurred in the adoption of the

doctrine.        I am not persuaded that the adoption of the
doctrine was unwarranted or that, after nineteen years, the

doctrine should be abandoned.

                                Elizabeth A. Weaver
                                Marilyn Kelly




                                2

