SAAD, J.
In this Whistleblowers' Protection Act (WPA)
The Michigan Supreme Court reversed, and "disavowed" what we thought was the principle articulated in Shallal on the relevance of plaintiff's private motivations.
In this case, plaintiff's actions are unquestionably and objectively contrary to the public interest. That is, regardless of his personal motivations (now irrelevant), his "whistleblowing" effort sought enforcement of a law that harmed, not advanced, the public interest.
The law in question, Burton Ordinances 68-C, is not a law that protects the public interest, but rather an ordinance that reads much like a standard, garden-variety collective-bargaining provision for wages and benefits.
The waiver of the benefits contained in 68-C — which plaintiff characterizes as a "violation of law" — has its origins in a severe financial crisis that afflicted the city of Burton in the earlier 2000s.
Only one department head objected to this waiver of perks: plaintiff, who was then the chief of police.
The WPA is designed to ferret out violations of the law that injure the public,
In addition, whistleblowing assumes that an employee takes a risk of retaliation for uncovering the public employer's misconduct. Here, there simply was no misconduct or illegality. The only conduct of the city employees that implicated 68-C was the department heads' decision to waive the perks contained in the ordinance, and plaintiff's refusal to honor that waiver. This is an insistence by an employee, plain and simple, to get his perks — not an uncovering of corruption or illegality. And this disagreement about the legal effects of the waiver was satisfied, in plaintiff's favor, after the city sought legal counsel. Accordingly, plaintiff's citation of the ordinance was not whistleblowing. It simply involved a disagreement regarding the proper interpretation of the city's labor laws: whether the administrative team could waive the perks under 68-C, and whether plaintiff was bound by the group's waiver. It has nothing to do with whistleblowing whatsoever.
This is why this is not the usual case, where a report of a violation of law normally constitutes conduct in the public interest.
Because he is not a "whistleblower" under the WPA, no juror could legally find in favor of plaintiff on his WPA retaliation claim. The trial court's denial of defendants' request for JNOV is accordingly reversed.
We also held in our earlier opinion that plaintiff's alleged whistleblower activity from late 2003 to early 2004 was not the legal cause of the mayor's decision to not reappoint plaintiff as police chief in late 2007.
As noted, in 2003, the mayor's administrative team voted to voluntarily take a wage freeze and forgo the perk of payment for accumulated sick days to save taxpayers' money and avoid layoffs and reduced services.
A third party who attended plaintiff's June 2004 meeting with the mayor made handwritten notes of the discussion, which state: "`Mayor — No Trust — 68-C (vacation) — lack of communication[.]'"
Plaintiff's claim has a serious temporal problem: he alleges that he was not reappointed in late 2007 for events that took place in late 2003 and early 2004. Our courts have taken pains to stress that the length of time between an alleged whistleblowing and an adverse employment action is not dispositive of retaliation — when those two events are close in time (i.e., days, weeks, or a few months apart).
The long period of time between plaintiff's supposed whistleblowing and the mayor's decision not to reappoint him involves another aspect that is fatal to plaintiff's claim: numerous breaks in the causal chain. Plaintiff's first complaints regarding the administrative team's waiver of 68-C perks in March 2003 clearly did not cause the mayor to retaliate. Indeed, the mayor reappointed him chief of police in November of that same year. His further attempts to secure compensation in January 2004 were addressed by the mayor — who sought the advice of city counsel and then outside labor counsel and complied with that legal advice by paying him almost $7,000 in additional compensation. And his 2004 dispute with the mayor ended amicably — he remained chief of police for over three years following that meeting, and, by his own admission, plaintiff never heard any mention of the 68-C dispute from the mayor and was not retaliated against during that time. These intervening events — all positive developments for plaintiff — raise serious doubts that his 68-C whistleblowing was a "determining factor" or "`caus[e] in fact'" of the mayor's decision to not reappoint him. Matras
In any event, plaintiff has provided no evidence to refute the mayor's stated and compelling reasons for not reappointing him: plaintiff engaged in serious misconduct and misused his office. After his reelection in November 2007, the mayor reevaluated his entire administrative team. During this period, he was advised of allegations of plaintiff's serious misconduct in office by officers in plaintiff's department. Among other things, these included allegations that plaintiff: (1) meted out inadequate discipline to subordinates who abused their power, (2) misused a city computer to exchange sexually explicit email messages with a woman who is not his wife, (3) discriminated against a female officer, and (4) forged a signature on a budget memo.
Plaintiff made no specific effort before this Court to deny these allegations against him, other than to state, self-servingly and without support, that they are "merely a pretext," and to assert "that his personnel file demonstrates that his performance as a police chief was good, that he had received numerous awards, and that there were never any disciplinary actions against him."
When this assertion is weighed against the other factors in this case — (1) the mayor's view of plaintiff's 68-C demands as a trust, not retaliation, (and certainly not "whistleblowing") issue, (2) the almost four-year interval between plaintiff's alleged whistleblowing and the purported retaliation, (3) the causal breaks in plaintiff's claim, and (4) allegations of plaintiff's extensive misconduct — the evidence is overwhelming that plaintiff's so-called "whistleblowing" had no connection to the mayor's decision to not reappoint him as police chief. There is simply no way that a reasonable fact-finder, even when viewing the evidence and all legitimate inferences
While we respect and join in the dissent's insistence on adhering to the strict letter of the law, we strongly disagree with the dissent's interpretations and conclusions. In our judgment, the dissent ignores the reality that plaintiff's conduct has nothing to do with "whistleblowing" in the sense envisioned by MCL 15.361 et seq. Indeed, plaintiff's conduct represents the antithesis of the WPA's purpose.
As an objective reality, plaintiff's conduct harmed, not helped, the public interest, just the opposite of what the WPA was intended to do. Any observer of the economic crisis must conclude that the administrative team's waiver of the benefits contained in 68-C advanced the interest of the taxpayers in the financially distressed city of Burton. It is not possible to both accept this reality and yet conclude that one who opposed the waiver and demanded his perk somehow serves the public interest — the two concepts are polar opposites of one another. To do so turns the WPA and reality upside down, and makes a mockery of the law and the context in which this case arises.
The same lack of realism permeates the dissent's causation analysis. Despite the fact that in the city of Burton, as in most cities, the chief of police, by law, serves "at the pleasure" of the mayor, the dissent suspends common sense and actually claims that the mayor, who was upset with what he regarded as plaintiff's untrustworthiness in 2003 and 2004, would wait almost four full years before not reappointing plaintiff because of these old disputes. Reaching this conclusion ignores the reality that the mayor reappointed plaintiff in 2003, after this disagreement surfaced, and worked closely with him for almost four subsequent years. It also ignores the admission of plaintiff himself that the mayor never retaliated against him after the 2004 disagreement, and that even after heated words in June 2004, they patched up their differences and worked together for almost four years without any incident. And it ignores numerous revelations of alleged serious misconduct that the mayor learned of in November 2007 — the month that the mayor decided not to reappoint plaintiff.
What is the evidence that a stale, minor incident from early 2004 allegedly loomed so large after all these years in late 2007? Not any direct evidence, and indeed no evidence of any kind, oral or written, that this was even a factor at the time the mayor made his decision. Rather, we are supposed to believe that during a discussion by the mayor with the commanders of the police department — a discussion that took place after the decision was made, but before the public announcement of the appointment of a new chief — comments were made that trust is an important quality in a chief and that the chief and the mayor had got off on the wrong foot because of a lack of trust in 2003 and 2004.
This is a fact, but a fact that has nothing to do with "whistleblowing," and nothing to do with the reasons for nonreappointment. It is a fact of life that when an entire administrative team shares in financial sacrifice in times of economic crisis, and one key member of that team either backs out of the agreement or breaks ranks with those who make the sacrifice, that there will be issues of trust and disappointment.
We and the dissent both cite the law of the case doctrine, but disagree on the interpretation of the Supreme Court's remand instructions.
As we noted, there is a distinction between a plaintiff's private motivations (now irrelevant) for reporting a violation of the law and the more fundamental question of whether the alleged reporting objectively advances the public interest. Though the Supreme Court addressed (and disavowed) the former analysis in its opinion, it said nothing and thus obviously did not rule on the latter, nor did we in our reversed opinion. Because the Supreme Court instructed us to address "all remaining issues on which [we] did not formally rule,"
We fundamentally disagree with the dissent's assertion that reporting a violation of any law advances the public interest, because this observation is inaccurate and ignores the reality of this case. In rare instances — such as this one — reporting violation of a law will not advance the public interest, and will in fact be contrary to the public interest.
For these reasons, we disagree with the dissent's observations on the law of the case, and think that we have an obligation, under the WPA, to hold that not all reports of legal violations are whistleblowing, because not all reports of legal violations objectively advance the public interest.
We also take issue with the dissent's causation analysis because it again ignores the reality of this public-sector setting.
Plaintiff admitted at trial that he used a city computer to exchange sexually explicit e-mails with a woman who is not his wife, which violated city policy. In addition, as noted, the trial court heard extensive testimony that plaintiff allegedly (1) meted out inadequate discipline to subordinates who abused their power, (2) discriminated against a female officer, and (3) forged a signature on a budget memo. Again, plaintiff makes no specific effort to deny these allegations against him, other than to state that they were "merely a pretext" to not reappoint him and provide a recitation of awards and positive performance reviews.
These stated reasons for declining to reappoint plaintiff, of which the mayor learned in November 2007, undermine plaintiff's claim that he was not reappointed for whistleblowing when two additional factors are added as context. As noted, the mayor could terminate plaintiff's employment at any time. Despite plaintiff's consistent demands that he receive compensation under 68-C in 2003 and 2004 (which he did) the mayor only declined to reappoint him in late 2007 — again, an almost four year gap between the alleged whistleblowing activity and the adverse employment action.
The dissent wrongly implies that we give this temporal gap undue weight in our analysis and that it is the sole factor motivating our holding. Rather, the temporal gap is of enormous importance when viewed in conjunction with the other aspects of this case, namely: (1) the mayor's ability to terminate plaintiff's employment at any time, (2) the numerous other, valid reasons the mayor gave to not reappoint plaintiff, and (3) the fact that the mayor did not reappoint plaintiff almost immediately after learning about these numerous, other valid reasons in late 2007.
The ultimate problem with the dissent's analysis of causation is that it ignores this context. Its would-be holding is based on a supposedly acrimonious 2004 meeting (which took place well over three years
Because no reasonable fact-finder could legally find in favor of plaintiff on his claim under the WPA, we reverse the trial court's denial of defendants' motion for JNOV and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
O'CONNELL, P.J. (concurring).
I concur fully with Judge Saad's majority opinion. I write separately to urge our Supreme Court to grant leave to appeal in the event of an application for leave to appeal and to consider the whistleblower claim in the context of plaintiff's breach of the agreement to forgo wage benefits. The record establishes that plaintiff attended the meeting at which city administrators agreed to forgo wage benefits. By doing so, plaintiff bound himself to a contractual agreement, which he later breached by demanding the forgone benefits. In my view, if there is any causal connection between plaintiff's whistleblower conduct and the decision not to reappoint him, plaintiff severed that connection by breaching the agreement to forgo wage benefits. To allow plaintiff to benefit from his breach is to ignore the substance and purpose of basic contract law and of the Whistleblowers' Protection Act (WPA), MCL 15.361 et seq.
In contract law, "[o]ne who commits the first substantial breach of a contract cannot maintain an action against the other contracting party for failure to perform." Sentry Ins. v. Lardner Elevator Co., 153 Mich.App. 317, 323, 395 N.W.2d 31 (1986). In this case, plaintiff and his similarly situated colleagues reached an agreement with defendants to forgo certain benefits. This agreement clearly benefitted the city and all of its residents, including plaintiff in his capacity as a resident of the city of Burton. Plaintiff then breached the agreement by demanding the forgone benefits. Plaintiff now attempts to benefit from his breach by conjuring an action under the WPA.
In my opinion, plaintiff's breach of contract precludes him from maintaining this specious action under the WPA.
BECKERING, J. (dissenting).
I respectfully dissent. The appeal of defendants, the city of Burton and former mayor Charles Smiley, returns to this Court from the Michigan Supreme Court after the Supreme Court held that plaintiff, Bruce Whitman, engaged in conduct protected under the Whistleblowers' Protection Act (WPA), MCL 15.361 et seq., and remanded to this Court to consider all remaining issues on which this Court did not formally rule, including the issue of causation. Whitman v. City of Burton, 493 Mich. 303, 319-321, 831 N.W.2d 223 (2013). On remand, the majority concludes that plaintiff is not a "whistleblower" under the WPA and that there was insufficient evidence at trial of causation to withstand defendants' motion for judgment notwithstanding the verdict (JNOV). I
When this case was appealed to the Michigan Supreme Court, the Court held that plaintiff engaged in protected activity under the WPA:
Despite our Supreme Court's conclusion, the majority holds that plaintiff "is not a `whistleblower' under the WPA...." The majority reaches this conclusion by finding that "plaintiff's actions — as an objective matter — were undoubtedly against the public interest" because Ordinance 68C "harmed, not advanced, the public interest."
First, our Supreme Court's express conclusion that plaintiff engaged in protected activity under the WPA is the law of the case; this Court is bound by this conclusion. See Lenawee Co. v. Wagley, 301 Mich.App. 134, 149, 836 N.W.2d 193 (2013) ("The law of the case doctrine holds that a ruling by an appellate court on a particular issue binds the appellate court and all lower tribunals with respect to that issue.") (quotation marks and citations omitted). The majority's holding that plaintiff is not a whistleblower under the WPA directly conflicts with the Supreme Court's conclusion that plaintiff engaged in protected
The majority attempts to sidestep the law of the case doctrine, opining that the Supreme Court remanded for consideration of "`all remaining issues on which [the Court of Appeals] did not formally rule'" and that this Court did not previously consider whether plaintiff's actions must have objectively advanced the public interest to be protected under the WPA. However, "[t]he law of the case doctrine applies ... to questions actually decided in the prior decision and to those questions necessary to the court's prior determination." City of Kalamazoo v. Dep't of Corrections (After Remand), 229 Mich.App. 132, 135, 580 N.W.2d 475 (1998) (emphasis added). Although neither this Court in its prior opinion nor our Supreme Court addressed whether plaintiff's actions must have objectively advanced the public interest to be protected under the WPA, the Supreme Court's conclusion that plaintiff engaged in protected activity under the WPA necessarily encompasses consideration of any issue that would be dispositive of whether plaintiff engaged in protected activity under the WPA. Assuming that plaintiff's actions must have objectively advanced the public interest to be protected under the WPA, this issue was necessary to the Supreme Court's determination that plaintiff engaged in protected activity under the WPA.
Second, the majority's conclusion is contrary to the plain language of the WPA. As our Supreme Court emphasized, "the plain language of MCL 15.362 controls" in this case. Whitman, 493 Mich. at 321, 831 N.W.2d 223. Nothing in the plain language of MCL 15.362 can be taken as a requirement that the law that is the subject of a report must objectively advance the public interest. Further, nothing in its plain language provides that the employee's report must objectively advance the public interest. MCL 15.362 provides as follows:
Neither the terms "public interest" nor any like terms are found in the statute. "It is a well-established rule of statutory construction that this Court will not read words into a statute." Byker v. Mannes, 465 Mich. 637, 646-647, 641 N.W.2d 210 (2002). "If the statutory language is clear and unambiguous, appellate courts presume that the Legislature intended the meaning plainly expressed, and further judicial construction is not permitted." McElhaney v. Harper-Hutzel Hosp., 269 Mich.App. 488, 493, 711 N.W.2d 795 (2006)(emphasis added).
As the basis for its holding that plaintiff's actions must have objectively furthered the public interest for plaintiff to be a whistleblower, the majority explains that
Third, the majority's conclusion is contrary to binding precedent. This Court has explained that "[t]he plain language of the [WPA] provides protection for two types of `whistleblowers': (1) those who report, or are about to report, violations of law, regulation, or rule to a public body, and (2) those who are requested by a public body to participate in an investigation held by that public body or in a court action."
Finally, even if plaintiff's actions must have objectively furthered the public interest for him to be a whistleblower under the WPA, I would conclude that this requirement is satisfied. The public interest is served when a violation of the law by a public official is reported. See Dolan, 454 Mich. at 378 n. 9, 563 N.W.2d 23 ("Violations of the law ... by governments and by the men and women who have the power to manage them are among the greatest threats to the public welfare.") (quotation marks and citation omitted); see also Gray v. Galesburg, 71 Mich.App. 161, 163, 247 N.W.2d 338 (1976) ("On the part of the city there has been conceded the right to prosecute the Grays for an alleged violation of a city ordinance, clearly a public interest."). In this case, it is undisputed that plaintiff reported Smiley's violation of Ordinance 68C to a public body. Although it may have been necessary for the city to adjust its budget to preserve essential public services and avoid terminating the employment of its
Accordingly, I would conclude — as our Supreme Court did — that plaintiff engaged in protected activity under the WPA. In other words, plaintiff is a whistleblower.
The majority also holds that "the evidence is overwhelming that plaintiff's so-called `whistleblowing' had no connection to the mayor's decision to not reappoint him as police chief," and thus, defendants are entitled to JNOV. I disagree.
With its repeated references to plaintiff's other alleged misdeeds, as "weighed against" his retaliation evidence, the majority opinion reads much like a fact-finder's conclusions. But the task before us is not to weigh the evidence and decide who we believe after reviewing a cold transcript. We are not jurors, and we were not at the trial. When determining whether the trial court should have granted a directed verdict or a motion for JNOV, our task is to "review the evidence and all legitimate inferences in the light most favorable to the nonmoving party. Only if the evidence so viewed fails to establish a claim as a matter of law, should the motion be granted."
In its opinion, the Supreme Court appears to suggest, without deciding, that a question of fact exists concerning causation:
Under the WPA, a plaintiff must establish that "a causal connection exists between the protected activity and the adverse employment action." Debano-Griffin v. Lake Co., 493 Mich. 167, 175, 828 N.W.2d 634 (2013) (quotation marks and citation omitted). "A plaintiff may establish a causal connection through either direct evidence or indirect and circumstantial evidence. Direct evidence is that which, if believed, requires the conclusion that the plaintiff's protected activity was at least a motivating factor in the employer's actions." Shaw v. Ecorse, 283 Mich.App. 1, 14, 770 N.W.2d 31 (2009).
Viewing the evidence presented at trial in the light most favorable to plaintiff, there was sufficient evidence for a reasonable juror to conclude that plaintiff's reporting of Smiley's violation of Ordinance 68C was a motivating factor in Smiley's decision not to reappoint plaintiff. See id.; see also Shaw, 283 Mich.App. at 14, 770 N.W.2d 31. As discussed in my previous
The majority lists a variety of reasons why there is no causal connection between plaintiff's reporting of the ordinance violation and Smiley's decision not to reappoint him. However, none of the reasons offered by the majority justifies the conclusion that there is no causal connection as a matter of law.
First, the majority opines that there is no causal connection because Smiley "viewed the 68-C issue ... as presenting an example of how plaintiff was untrustworthy." The majority references the notes that Udell took at the June 2004 meeting, which state, "Mayor — no trust — 68 — C (vacation) — lack of communication...." According to the majority, this evidence establishes that Smiley decided not to reappoint plaintiff because he did not trust plaintiff, not because plaintiff was a whistleblower. The majority views the evidence of the June 2004 meeting in a light most favorable to defendants, the moving parties, which is improper when reviewing a motion for JNOV. See Genna v. Jackson, 286 Mich.App. 413, 417, 781 N.W.2d 124 (2009). There was evidence presented that at the June 2004 meeting, Smiley yelled at plaintiff, "You threatened to have me prosecuted over the 68C vacation pay issue." Even assuming on the basis of this evidence that Smiley decided not to reappoint plaintiff because he did not trust plaintiff, it can be reasonably inferred that Smiley's distrust of plaintiff was predicated on plaintiff's reporting of Smiley's violation of Ordinance 68C. Thus, even when the matter is framed in terms of trust as opposed to whistleblowing, it remains that Smiley decided not to reappoint plaintiff "because of his protected activity." Whitman, 493 Mich. at 320, 831 N.W.2d 223 (emphasis omitted).
Second, the majority concludes that the temporal gap between plaintiff's reporting of the ordinance violation and Smiley's decision not to reappoint him "belies any causal connection between the two." In support of their conclusion, the majority cites cases from other jurisdictions for the proposition that large temporal gaps between protected activity and alleged retaliatory acts have been fatal to retaliation claims. However, it is well established in many jurisdictions that "[t]he mere passage of time is not legally conclusive proof against retaliation." Robinson v. Southeastern Pennsylvania Transp. Auth., Red Arrow Div., 982 F.2d 892, 894 (C.A.3, 1993); see also, e.g., Shirley v. Chrysler First, Inc., 970 F.2d 39, 44 (C.A.5, 1992) (stating that temporal proximity "is part of our analysis, but not in itself conclusive of our determinations of retaliation"); Castillo v. Dominguez, 120 Fed.Appx. 54, 57 (C.A.9, 2005) (stating that a lack of temporal proximity may make it more difficult to show causation, but circumstantial evidence of a pattern of antagonism following the protected conduct can also give rise to the inference of causation). Indeed, the United States Court of Appeals for the Sixth Circuit has stated, "We have never suggested that a lack of temporal proximity dooms a retaliation claim." Gibson v. Shelly Co., 314 Fed.Appx. 760, 772 (C.A.6, 2008). "Temporal proximity is but one method of proving retaliation." Che v. Massachusetts Bay Transp. Auth., 342 F.3d 31, 38 (C.A.1, 2003). For example, where there is a lack of temporal proximity between protected activity and the adverse employment action, "circumstantial
In this case, the lack of temporal proximity between plaintiff's reporting of the ordinance violation and Smiley's decision not to reappoint him is but one factor to consider when determining whether a causal connection exists. It is not conclusive. As previously discussed, although Smiley did not immediately fire plaintiff as threatened and plaintiff remained the police chief through November 2007, a reasonable juror could conclude that the Ordinance 68C issue was still on Smiley's mind when he decided not to reappoint plaintiff. By Smiley's own admission, there were incidents going back as far as 2004 that made a difference in his decision-making in 2007. And there was evidence in this case illustrating that Smiley's antagonism toward plaintiff arising from the ordinance issue continued through the date when Smiley declined to reappoint plaintiff and was a motivating factor in Smiley's decision.
Finally, the majority cites various "breaks in the causal chain" and alleged misconduct committed by plaintiff that they believe is fatal to plaintiff's claim. Particularly, in addition to referring to the temporal gap during which plaintiff remained the police chief, the majority opines that plaintiff's initial complaints about the ordinance did not upset Smiley and that Smiley enforced the ordinance after plaintiff complained. The majority also opines that plaintiff inadequately disciplined subordinates, sent sexually explicit e-mail messages on a city computer, discriminated against a female officer, and forged a signature on a budget memorandum.
While there was evidence that there may have been a variety of reasons for Smiley's decision not to reappoint plaintiff, there was ample evidence that plaintiff's reporting of the ordinance violation was a motivating factor for the adverse employment action. Although plaintiff initially objected in March 2003 to the lack of vacation payout, plaintiff did not couch his objection in terms of an ordinance violation until January 2004; therefore, the absence of any animosity by Smiley toward plaintiff in 2003 is understandable. There was certainly evidence at trial that Smiley was upset with plaintiff over the ordinance issue
Accordingly, because plaintiff engaged in a protected activity and there was sufficient evidence of a causal connection between the protected activity and the subsequent decision not to reappoint plaintiff to create a question of fact for the jury, I would affirm the trial court's denial of defendants' motion for JNOV.
We cite these examples not to mock these laws or the sentiments they express, but to demonstrate that not all individuals who report violations of laws are whistleblowers, because reporting a violation of law in and of itself does not always objectively advance the public interest. For instance, many dog-owning Michiganders do not get licenses for their pets. Under the dissent's definition of "whistleblowing" and interpretation of the WPA, an individual who complains that the local prosecuting attorney is not enforcing MCL 287.277 because he is not "commenc[ing] the necessary proceedings against" the owners of "all unlicensed dogs" is a "whistleblower" worthy of WPA protections — that individual has reported a violation of the law and is hence a whistleblower. We think such a result would be absurd because it plainly does not advance the public interest, which, as noted, is the WPA's raison d'être. See Detroit Int'l Bridge Co. v. Commodities Export Co., 279 Mich.App. 662, 675, 760 N.W.2d 565 (2008) ("[t]herefore, to paraphrase Justice MARKMAN in Cameron [v. Auto Club Ins. Ass'n, 476 Mich. 55, 80, 718 N.W.2d 784 (2006)], a statute need not be applied literally if no reasonable lawmaker could have conceived of the ensuing result"). Again: not all individuals who report violations of law are whistleblowers worthy of WPA protection, because enforcement of some laws can be detrimental to the public interest. The fact that these instances are rare does not make this distinction any less vital.
