Retaliation Cases

Paul Mendonca vs. Civil Service Commission & another. No. 13-P-1979. Suffolk. September 15, 2014. December 12, 2014. Present: Berry, Kafker, & Carhart, JJ. Veteran. Handicapped Persons. Public Employment, Provisional employee, Termination, Reinstatement of personnel. Civil Service, Termination of employment, Reinstatement of personnel. Employment, Termination. Administrative Law, Substantial evidence. Discussion of the standard of review applicable to a decision of the Civil Service Commission. [761-762] There was no error in the conclusion of the Civil Service Commission that a disabled veteran challenging his layoff by the Executive Office of Labor and Workforce Development was not entitled to rights under the Veterans’ Tenure Act (act), G. L. c. 30, § 9A, where his position was classified under the civil service laws, and the act, by its terms, applies to veterans holding positions that are not classified. [762-763] A Superior Court judge erred in upholding a decision of the Civil Service Commission concluding that the Executive Office of Labor and Workforce Development had not violated the Disabled Veterans’ Act, G. L. c. 31, § 26, by laying off a disabled veteran while retaining another employee who held the same job title in a different position and who was not a disabled veteran, where the record did not provide substantial evidence that the disabled veteran was unqualified for the other employee’s position. [763-766] Civil action commenced in the Superior Court Department on January 13, 2012. The case was heard by Garry V. Inge, J., on a motion for judgment on the pleadings. Richard L. Neumeier (Galen Gilbert with him) for the plaintiff. Iraida J. Alvarez, Assistant Attorney General, for the defendants. Executive Office of Labor and Workforce Development. Carhart, J. Paul Mendonca appeals from the entry of judgment in favor of the defendants following a Superior Court judge’s denial of his motion for judgment on the pleadings. Mendonca had sought review pursuant to G. L. c. 31, § 44, of a decision by the Civil Service Commission (commission) upholding his layoff by the Executive Office of Labor and Workforce Development (EOLWD). Mendonca alleged that the layoff violated his rights as a disabled veteran. We agree and reverse. Background. Mendonca is a disabled Vietnam War veteran. He holds a bachelor of science degree in business management from Suffolk University and a master’s degree in business administration from the University of Massachusetts. Mendonca’s extensive work history includes management, training, and marketing in the human resources field. He has negotiated and managed labor agreements to ensure labor law compliance; he has established and implemented human resources systems for various companies; he has recruited and trained staff; and he has secured competitive State abandoned property audit contracts for private companies. On May 3,1999, the Commonwealth hired Mendonca as a provisional Administrator III. A Management Questionnaire (MQ) describing Mendonca’s position shows that Mendonca was responsible for administering the Commonwealth’s federally funded Job Search/Job Readiness Program (JS/JR). Mendonca worked closely with several State agencies, including the Departments of Transitional Assistance (DTA), Unemployment Assistance (DUA), and Career Services (DCS), and ensured that JS/JR “[wa]s operated according to Federal, State and contractual requirements.” Mendonca’s duties included negotiating and drafting interdepartmental service agreements; specifically, he “[r]ec-ommend[ed] amounts and conditions for reimbursement, scope of services, program requirements, key performance objectives, budget provisions and staffing configurations to ensure contractual goals are achievable.” On March 29, 2007, the human resources division of EOLWD determined that the title Program Coordinator II more accurately reflected Mendonca’s duties. However, Mendonca retained the title Administrator III. Mendonca was laid off on April 10, 2008, when his position was eliminated as a result of budget cuts. Four other Administrator III positions existed at that time: Web services manager, deputy director of contracts and procurement (deputy director), Hurley Building superintendent (superintendent), and manager of the office of multilingual services. The individuals holding these positions included one veteran holding a permanent original appointment, and three nonveterans The MQ for each respective position lists its requirements. The Web services manager must hold a “Bachelor’s degree in Fine Arts” and have five to ten years’ experience developing and managing Web sites. The superintendent position “requires a high degree of technical knowledge in building systems including fire detection/alarm systems; HVAC systems; plumbing and electrical systems; elevator systems; State and local building codes; and [Americans with Disabilities Act] requirements.” The superintendent “must be on call 24 hours a day, seven days a week, and must be prepared to immediately bring resources to bear to resolve emergency situations.” For example, the superintendent must be able to resolve dangerous building conditions and malfunctioning heating or air conditioning systems. The manager of the office of multilingual services must be bilingual in English and Spanish, and the position “requires mastery of several foreign languages” and a “Linguistics degree.” Finally, the deputy director “advise[s] agency personnel on procurement matters associated with the Commonwealth’s operations and policy to ensure ... compliance with all applicable state and federal laws, rules and regulations.” The deputy director position entails managing and training staff in matters “relating to procuring goods and services; managing multi-year encumbrances of state and federal funds for Federal/ State programs, grants; Interdepartmental Service Agreements and miscellaneous Agreements; writing proposals ...; approving attorney fee requests; and contract review.” The deputy director analyzes and recommends action on issues relating to procurement and contracts with private entities, “ensuring compliance with state and federal laws and Executive Orders.” The position requires “a minimum of an Associate[’]s Degree in Accounting and or Business Management,” along with five years’ experience in accounting, finance, and contract and procurement management. EOLWD determined that Mendonca could not be retained because he was not qualified for any of the other Administrator III positions. Mendonca appealed EOLWD’s decision to the commission, which held a hearing on August 3, 2009. David E. Olsen, human resources director for EOLWD, testified that he was responsible for laying off Mendonca. He noted Mendonca’s veteran status and stated that he understood G. L. c. 31 to require “[t]hat veterans shall be retained in title until all other similarly situated offices are eliminated.” Olsen therefore investigated the remaining Administrator III positions to determine whether Mendonca could be retained. Olsen concluded that Mendonca could not be retained as an Administrator III because the remaining positions were “very different” from Mendonca’s job, and “Mendonca’s skill and his personnel file, his resume, his background, had always been in either human resources, job placement type of work.” Olsen did not consider Mendonca for any positions outside of the Administrator III title because the positions were “not similarly situated”; they either had different job classifications or dealt with the public instead of staff. Olsen testified that, in evaluating Men-donca’s case, he “was operating within the scope of [his] interpretation of the law.” Dana Johnson testified for Mendonca. Johnson is a rehabilitation counselor. She evaluates individuals to determine “if somebody’s under employed or if somebody actually is employable or what it would take to make somebody employable.” She often provides expert testimony in insurance and divorce cases. Johnson testified that transferable skills are those “that you can take from one job and bring them to another.” Nontransferable skills are those limited to a particular position or field. In Johnson’s opinion, Mendonca’s position as JS/JR coordinator required transferable skills including: evaluating a government program and determining what training or further resources the employees may need to improve performance; budgeting; handling State reimbursements; coordinating services with other government agencies; and assessing vendor contracts to ensure that the Commonwealth’s money is well spent. Mendonca was required in his position to read, analyze, and follow through on contracts, which Johnson also considers to be transferable skills. On December 15, 2011, the hearing officer issued a written decision which contained thirty-three findings of facts. Of particular relevance to our discussion is the following finding: “30. In regard to the position of Deputy Director of Contracts and Procurement, [Mendonca] has no experience in contract procurement activities and the laws regarding trade and procurement regulations. He has not reviewed procurement contracts, granted agreements or approved fee requests from attorneys representing [DUA] Unemployment Insurance clients. [Mendonca] does not possess knowledge of [EOLWD]’s Affirmative Market Program or of the laws and regulations on trade such as the North American Free Trade Agreement (‘NAFTA’) and the Trade Adjustment Assistance Act. Furthermore, [Mendonca] does not possess knowledge, skills or abilities relating to the MARS system (the state’s accounting system), financial systems, or GAP (general accounting principles) policies and procedures specific to the comptroller’s office.” The hearing officer concluded, based on her findings, that (1) Mendonca is not entitled to relief under the Veterans’ Tenure Act, G. L. c. 30, § 9A, because his position is “classified”; (2) as a matter of law, Mendonca is not entitled under the Disabled Veterans’ Act, G. L. c. 31, § 26, to an absolute preference in employment; (3) Mendonca is not entitled to relief under G. L. c. 31, § 39, because he was a “provisional” employee; and (4) EOLWD’s decision that Mendonca was not qualified for any of the other Administrator III positions was supported by substantial evidence. Mendonca sought Superior Court review pursuant to G. L. c. 31, § 44. On October 11, 2013, the Superior Court judge upheld the commission’s decision. Discussion. 1. Standards of review. The commission was required “to determine, on the basis of the evidence before it, whether [EOLWD] sustained its burden of proving, by a preponderance of the evidence, that there was reasonable justification for the action taken by [EOLWD].” Brackett v. Civil Serv. Commn., 447 Mass. 233, 241 (2006). “Reasonable justification in this context means ‘done upon adequate reasons sufficiently supported by credible evidence, when weighed by an unprejudiced mind, guided by common sense and by correct rules of law.” Ibid., quoting from Selectmen of Wakefield v. Judge of First Dist. Ct. of E. Middlesex, 262 Mass. 477,482 (1928). The judge was required to uphold the commission’s decision if supported by substantial evidence. Ibid. “[W]e review the commission’s decision to determine if it violates any of the standards set forth in G. L. c. 30A, § 14(7), and cases construing those standards.” Plymouth v. Civil Serv. Commn., 426 Mass. 1, 5 (1997). While we are “bound to accept the findings of fact of the commission’s hearing officer, if supported by substantial evidence,” Leominster v. Stratton, 58 Mass. App. Ct. 726, 728 (2003), “we are required to overturn commission decisions that are inconsistent with governing law.” Plymouth, supra. We review conclusions of law de nova, Andrews v. Civil Serv. Commn., 446 Mass. 611, 615 (2006), and ask “whether, on the basis of the transcript of evidence before the [hearing officer] and the [hearing officer]’s findings and conclusions, the commission substantially erred in a way that materially affected the rights of the parties.” Gloucester v. Civil Serv. Commn., 408 Mass. 292, 297 (1990). Mendonca bears the burden of proving the invalidity of the commission’s decision. See Brackett, supra at 242. 2. Veterans’ Tenure Act. The hearing officer concluded that Men-donca was not entitled to additional rights under the Veterans’ Tenure Act, G. L. c. 30, § 9A, because Administrator III is a classified position. Under that statute, veterans holding positions not classified under the civil service laws may not be laid off except in accordance with G. L. c. 31, §§ 41-45. G. L. c. 30, § 9A, as amended by St. 1978, c. 393, § 8. General Laws c. 31, §§ 41-45, require that a layoff be for “just cause,” and that the employee have notice, a hearing, and review of the decision. If layoff of a veteran holding an unclassified job “results from lack of work or lack of money,” the Veterans’ Tenure Act provides that such veteran “shall not be separated . . . while similar offices or positions in the same group or grade ... exist unless all such offices or positions are held by such veterans.” G. L. c. 30, § 9A. The Administrator III position is classified under the civil service laws, see G. L. c. 31, § 45(1), and the Veterans’ Tenure Act applies, by its terms, to veterans holding positions that are not classified. See Aquino v. Civil Serv. Commn., 34 Mass. App. Ct. 538, 541 (1993) (applying the “well-known maxim” that “expression of one thing is the exclusion of another”). Because Mendonca’s position was “expressly exempted by the language of [G. L. c. 31, § 9A,]” there was no error in the hearing officer’s conclusion. Barkin v. Milk Control Commn., 8 Mass. App. Ct. 517, 520 (1979). Indeed, as a “provisional” employee, Mendonca could not achieve tenure and could be terminated at any time. See G. L. c. 31, § 14; Sullivan v. Commissioner of Commerce & Dev., 351 Mass. 462, 465 (1966); Dallas v. Commissioner of Pub. Health, 1 Mass. App. Ct. 768, 111 (1974); Fall River v. AFSCME Council 93, Local 3177, AFL-CIO, 61 Mass. App. Ct. 404,408 n.4 (2004). EOLWD did not need to show just cause for its action, Rafferty v. Commissioner of Pub. Welfare, 20 Mass. App. Ct. 718, 123 (1985), and Mendonca was not entitled to a hearing because he was not “discharged as a result of allegations relative to his personal character or work performance.” G. L. c. 31, § 41, inserted by St. 1978, c. 393, § 11. 3. Disabled Veterans’ Act. Under the Disabled Veterans’ Act, “[a]n appointing authority shall appoint a veteran in making a provisional appointment under section twelve,” and “[a] disabled veteran shall be retained in employment in preference to all other persons, including veterans.” G. L. c. 31, § 26, inserted by St. 1978, c. 393, § 11. General Laws c. 31, § 26, represents “a legislatively created mechanism under which veterans receive a preference over non-veterans in certain types of civil service employment.” Aquino, 34 Mass. App. Ct. at 539. Because the statute requires that “disabled veterans be[ ] kept on the payroll in preference to others,” Provencal v. Police Dept, of Worcester, 423 Mass. 626, 630 (1996), “all employees having the same title in a particular departmental unit who are not disabled veterans must be laid off first according to seniority, followed by such employees who are disabled veterans according to seniority.” 1980 Op. Atty. Gen., Rep. A.G., Pub. Doc. No. 12 at 98 (July 21, 1980). Here, EOLWD laid off Mendonca while retaining three Administrator Ills who are not veterans, and one Administrator III who is not a disabled veteran. The hearing officer concluded that EOLWD’s actions did not violate G. L. c. 31, § 26, because “substantial evidence established that [Mendonca] could not show that there were any other Administrator III positions for which he was qualified within EOLWD into which he could have been transferred.” Massachusetts courts have recognized a “basic requirement that the veteran being preferred be otherwise qualified to perform the duties of the office or position to which he was appointed.” Hutcheson v. Director of Civil Serv., 361 Mass. 480, 497-498 (1972) (Quirico, 1, dissenting), and cases cited. Men-donca offered his resume and Johnson’s testimony to demonstrate his qualification for two of the remaining Administrator III positions — Hurley Building superintendent and deputy director of contracts and procurement. The hearing officer relied on Olsen’s testimony, the documentary evidence, and Johnson’s testimony regarding transferable skills in concluding that Mendonca was not qualified for any other Administrator III positions. While the record supports the hearing officer’s findings concerning the Hurley Building superintendent position, we cannot agree that it provides substantial evidence that Mendonca was unqualified for the deputy director position. “ ‘Substantial evidence’ means such evidence as a reasonable mind might accept as adequate to support a conclusion.” G. L. c. 30A, § 1(6). While Olsen testified that Mendonca’s job “was very different” from those performed by the other Administrator Ills, the title Administrator III is “applied to a position or to a group of positions having similar duties and the same general level of responsibility.” G. L. c. 31, § 1, inserted by St. 1978, c. 393, § 11 (defining “Title”). To avoid this reality, Olsen testified that Mendonca’s duties more closely resembled those of a program manager, which is a “line oriented” position. Olsen then stated that he did not consider Mendonca for a program manager position because they were “line oriented” as opposed to “staff oriented” and therefore not “similarly situated” to Mendonca’s Administrator III position. Thus, according to Olsen’s testimony, Mendonca was not qualified for the Administrator III positions because those are “staff oriented” and Mendonca was a “line manager,” and Olsen did not need to consider Mendonca for a “line oriented” program manager position because Administrator III is “staff oriented” and G. L. c. 31, § 26, only requires Olsen to investigate “similarly situated offices.” In hiring Mendonca as a provisional employee, EOLWD was required to substantiate that Mendonca “meets the proposed requirements for appointment to the position [of Administrator III] and possesses the knowledge, skills and abilities necessary to perform such duties.” G. L. c. 31, § 13, amended by St. 1985, c. 257, § 4. “A provisional appointment . . . shall be terminated” whenever it is determined “that the person appointed does not, in fact, possess the approved qualifications or satisfy the approved requirements for the position,” G. L. c. 31, § 14, inserted by St. 1978, c. 393, § 11; however, Mendonca’s provisional employment was not terminated when he was reclassified as a “line oriented” Program Coordinator II. Olsen’s stated justification for not retaining Mendonca either in his titled Administrator III position or in the Program Coordinator II position was that an individual rarely possesses the skills to work in both “staff oriented” and “line oriented” positions. Olsen also testified that Mendonca’s experience was in human resources (a “staff oriented” field), and that his duties as JS/JR coordinator more closely resembled those of a “line manager.” We do not think that “under the substantial evidence test,” Olsen’s inconsistent testimony and circular logic could “reasonably form the basis of impartial, reasoned judgment.” Cobble v. Commissioner of the Dept, of Social Servs., 430 Mass. 385, 393 n.8 (1999). The deputy director position requires an associate’s degree in business administration. Mendonca has a bachelor’s degree in business management and a master’s degree in business administration. While the hearing officer found that Mendonca “does not possess knowledge, skills or abilities relating to the” Commonwealth’s accounting system, financial

David Fernandes vs. Attleboro Housing Authority. Bristol. September 4, 2014. November 19, 2014. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Labor, Wages. Superior Court, Jurisdiction. Jurisdiction, Primary jurisdiction, Superior Court, Civil Service Commission. Public Employment, Termination, Reinstatement of personnel. Civil Service, Applicability of provisions, Termination of employment, Reinstatement of personnel. Employment, Termination, Retaliation. Damages, Additur. Practice, Civil, Additur, Attorney’s fees. Housing Authority. Municipal Corporations, Housing authority. A Superior Court judge had subject matter jurisdiction over claims in a civil action brought by a plaintiff who was employed by a municipal housing authority as a mechanic, i.e., that the employer had violated the Wage Act, G. L. c. 149, §§ 148 and 148A, by intentionally misclassifying the plaintiff and thereby failing to pay him the wages to which he was entitled, and by terminating the plaintiff in retaliation for complaining about the nonpayment of earned wages and filing a complaint with the Attorney General’s office, where nothing in the civil service law, G. L. c. 31, §§ 41-45, suggested that the plaintiff was required to bring his action before the Civil Service Commission (commission), especially given that G. L. c. 31, § 42, suggests that the Legislature has not granted to the commission exclusive authority over all challenged employment actions and given also that the nature of the plaintiff’s claims was such that resolution of them did not require the special expertise of the commission and their resolution by the Superior Court did not interfere with the development and administration of policies under the civil service law. [120-127] In a civil action alleging a violation of the Wage Act, G. L. c. 149, §§ 148 and 148A, the judge properly declined to order the plaintiff’s reinstatement to a higher position with full seniority, where reinstatement was not an available remedy for violations of the Wage Act [127-130]; likewise, the judge did not abuse his discretion in declining to order a new trial on the question of damages or to order additur, where the damages that the jury awarded were not unreasonable [130-132]. This court concluded that, under G. L. c. 149, § 150, a litigant who prevailed in an action alleging violations of the Wage Act was entitled to recover reasonable appellate attorney’s fees and costs. [132] Civil action commenced in the Superior Court Department on November 13, 2009. The case was heard by Robert J. Kane, J., and motions for judgment notwithstanding the verdict, for reinstatement, and for a new trial or for additur were heard by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Maria M. Scott for the plaintiff. David D. Dowd for the defendant. Spina, J. David Fernandes was employed by the Attleboro Housing Authority (AHA) as a maintenance mechanic II from January 16, 2001, until his termination on May 29, 2009. Approximately six months later, he commenced an action in the Superior Court against the AHA for alleged violations of the Wage Act, G. L. c. 149, §§ 148 and 148A. Fernandes claimed that the AHA violated § 148 by intentionally misclassifying his position as maintenance mechanic II, instead of maintenance mechanic I, and thereby failing to pay him the wages to which he was entitled. Fernandes also alleged that the AHA violated § 148A by terminating him in retaliation for complaining about nonpayment of earned wages and filing a complaint with the Attorney General’s office. Following a trial in January, 2012, a jury, in response to special questions, found in favor of Fernandes on both claims. The jury awarded damages against the AHA in the amount of $2,300 for unpaid wages due to misclassification, and $130,000 for lost wages due to retaliation. The parties then filed numerous posttrial motions. Of relevance to the present appeal, the AHA filed a motion for judgment notwithstanding the verdict, contending that the Superior Court lacked subject matter jurisdiction over Fernandes’s wage and retaliation claims because, as a housing authority employee, Fernandes was required to bring such claims before the Civil Service Commission (commission) for resolution. Fernandes filed a motion for reinstatement to the position of maintenance mechanic I with full seniority as if he had not been terminated from employment on May 29, 2009, and a motion for a new trial on damages or, in the alternative, for additur. Following hearings, the trial judge denied all three motions in a thorough and well-reasoned decision. First, after considering the purposes of and remedies afforded by the Massachusetts civil service law, G. L. c. 31, §§ 41-45, and the Wage Act, G. L. c. 149, §§ 148, 148A, 150, the judge discerned no legislative intent to confine a housing authority employee to the procedures set forth in the civil service law where his termination implicated violations of his rights under the Wage Act. Accordingly, the judge concluded that the AHA was not entitled to judgment notwithstanding the verdict. Next, with respect to Fernandes’s motion for reinstatement, the judge was unpersuaded that G. L. c. 149, § 150, authorized such a remedy for retaliatory conduct in the absence of clear statutory language to that effect. Finally, the judge concluded that although the jury’s calculation of $130,000 in damages for lost wages due to retaliation was less than the amount to which Fernandes thought he was entitled, the award was neither unreasonable nor so unduly small as to suggest the need for additional relief. In accordance with G. L. c. 149, § 150, the judge proceeded to award Fernandes treble damages in the amount of $6,900 for unpaid wages and $390,000 for retaliatory termination, plus reasonable attorney’s fees in the amount of $36,667.50 and costs of $1,087.36. The parties’ cross appeals were entered in the Appeals Court, and we transferred the case to this court on our own motion. For the reasons that follow, we conclude that the Superior Court had subject matter jurisdiction over Fernandes’s claims under the Wage Act, that reinstatement to employment is not an available remedy for violations of such statutory scheme, and that the judge did not abuse his discretion in denying Fernandes’s motion for additur. Accordingly, the judgment of the Superior Court is affirmed. 1. Background. We briefly recite the facts the jury could have found from the evidence at trial, reserving some details for later discussion. When Fernandes was hired by the AHA in 2001, he was classified as a maintenance mechanic II. It was an entry-level position, considered to be in the nature of an apprenticeship to a higher job classification. In 2003, the executive director of the AHA, John Zambarano, implemented changes to the duties of its maintenance department workers. Pursuant to these changes, Fernandes was required to perform more diversified work that he believed was consistent with the position of maintenance mechanic I, which required a greater skill level and paid a higher salary than he was receiving. Notwithstanding Fernandes’s enhanced job responsibilities, the AHA continued to pay him the salary of a maintenance mechanic II. On various occasions over the years of his tenure, Fernandes complained to his supervisor, Mark Johnson, and to Zambarano that he was misclassified and that, based on his duties, he properly should be classified as a maintenance mechanic I with the commensurate wage rate. His complaints were unsuccessful. Finally, on April 28, 2009, Fernandes filed a “Non-Payment of Wage and Workplace Complaint Form” with the Attorney General’s office. He alleged that, based on his job responsibilities, he had been misclassified as a maintenance mechanic II and was owed wages commensurate with the position of maintenance mechanic I. Fernandes informed Johnson that he had filed this complaint, and he subsequently requested and received from Dianne Precourt, AHA’s financial coordinator, copies of his job description and the prevailing wage rates. One month later, on May 29, 2009, Zambarano called Fernandes into a meeting and informed him that, based on the seniority of the personnel on the maintenance staff, Fernandes was being laid off due to budgetary constraints. He was given two weeks of severance pay. The present action ensued. 2. Jurisdiction over Fernandes’s claims. The AHA contends in this appeal that a housing authority employee can seek redress for an adverse employment action only through administrative proceedings under the civil service law, G. L. c. 31, §§ 41-45, and not through judicial proceedings in the Superior Court. In the AHA’s view, Fernandes’s complaint essentially alleged that he had been subjected to a decrease in compensation and then terminated without “just cause,” G. L. c. 31, §41, which are matters within the exclusive purview of the commission. Consequently, the AHA continues, the Superior Court lacked subject matter jurisdiction over Fernandes’s original action and, therefore, the judge should have granted AHA’s motion for judgment notwithstanding the verdict under the doctrine of primary jurisdiction. We disagree. The doctrine of primary jurisdiction arises in cases where a plaintiff, “in the absence of pending administrative proceedings, invokes the original jurisdiction of a court to decide the merits of a controversy” that includes an issue within the special competence of an agency. Murphy v. Administrator of the Div. of Personnel Admin., 377 Mass. 217, 220 (1979). See Everett v. 357 Corp., 453 Mass. 585, 609 (2009); Leahy v. Local 1526, Am. Fed’n of State, County & Mun. Employees, 399 Mass. 341, 345-346 & n.3 (1987). See generally A.J. Celia, Administrative Law and Practice § 1725 (1986 & Supp. 2014). “Where an agency has statutorily been granted exclusive authority over a particular issue, the doctrine of primary jurisdiction requires that a court refer the issue to the agency for adjudication in the first instance” (emphasis in original). Blauvelt v. AFSCME Council 93, Local 1703, 74 Mass. App. Ct. 794, 801 (2009), citing Everett v. 357 Corp., supra at 609-610. See Puorro v. Commonwealth, 59 Mass. App. Ct. 61, 64 (2003). The underlying rationale is that a court must be careful not to invade the province of an administrative agency before it has begun to exercise its authority in a particular case because judicial interference effectively would transfer to the courts a matter entrusted to the agency by the Legislature and would result in a substitution of the court’s judgment for that of the agency. See Wilczewski v. Commissioner of the Dep’t of Envtl. Quality Eng’g, 404 Mass. 787,792 (1989). The doctrine of primary jurisdiction has particular applicability when “an action raises a question of the validity of an agency practice ... or when the issue in litigation involves ‘technical questions of fact uniquely within the expertise and experience of an agency’ ” (citations omitted). Murphy v. Administrator of the Div. of Personnel Admin., supra at 221, quoting Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 304 (1976). See Columbia Chiropractic Group, Inc. v. Trust Ins. Co., 430 Mass. 60, 62 (1999). This court has noted that “[a] determination that primary jurisdiction over an issue in a civil case resides with an administrative agency requires that the case be stayed or dismissed to permit the administrative agency the opportunity to issue its determination.” Everett v. 357 Corp., 453 Mass. at 610 n.32. When an entire controversy is within the exclusive jurisdiction of an administralive agency, the doctrine of primary jurisdiction “ordinarily results in dismissal of judicial proceedings begun without prior resort to the agency.” J. & J. Enters., Inc. v. Martignetti, 369 Mass. 535, 540 (1976). However, “[wjhere at least one of the issues or claims is a matter for judicial determination or resolution, the court is not ousted of subject matter jurisdiction by the presence in the case of one or more issues which arguably are within the jurisdiction of an administrative or regulatory agency.” Austin Lakes Joint Venture v. Avon Utils., Inc., 648 N.E.2d 641, 646 & n.5 (Ind. 1995). See Everett v. 357 Corp., supra at 611 n.34. We proceed to consider the exclusivity of the commission’s jurisdiction with respect to Fernandes’s claims. The AHA argues that because G. L. c. 121B, § 29, explicitly provides civil service protections to tenured housing authority employees, the Legislature intended to confer jurisdiction solely on the commission to resolve complaints about purported adverse employment actions. We conclude that nothing in the civil service law suggests that Fernandes was required to bring his action before the commission where his claims alleged violations of the Wage Act, G. L. c. 149, §§ 148 and 148A. General Laws c. 121B, § 29, provides that “[n]o employee of any housing authority, except an employee occupying the position of executive director, who has held his office or position . . . within the authority for a total period of five years of uninterrupted service, shall be involuntarily separated therefrom except subject to and in accordance with the provisions of [G. L. c. 31, §§41-45,] to the same extent as if said office or position were classified under said chapter.” In turn, G. L. c. 31, § 41, states that a tenured employee shall not be discharged or laid off except for “just cause” and except in accordance with specific procedural requirements set forth in the first paragraph of § 41. Pursuant to G. L. c. 31, § 42, “[a]ny person who alleges that an appointing authority has failed to follow the requirements of [§ 41] in taking action which has affected his employment or compensation may file a complaint with the commission” (emphasis added). In accordance with G. L. c. 31, § 43, “[i]f a person aggrieved by a decision of an appointing authority made pursuant to [§ 41] shall . . . appeal in writing to the commission, he shall be given a hearing.” Thereafter, “[a]ny party aggrieved by a final order or decision of the commission . . . may institute proceedings for judicial review in the superior court.” G. L. c. 31, § 44. Finally, a tenured employee who has incurred attorney’s fees in the defense of an unwarranted adverse employment action “shall be reimbursed for such expense,” subject to specified limitations. G. L. c. 31, § 45. In essence, G. L. c. 121B, § 29, affords housing authority employees, like Fernandes, the protections of the civil service system. “The fundamental purpose of the civil service system is to guard against political considerations, favoritism, and bias in governmental hiring and promotion.” Massachusetts Ass’n of Minority Law Enforcement Officers v. Abban, 434 Mass. 256, 259 (2001). It also is designed to “protect efficient public employees” from partisanship and arbitrary punishment. Murray v. Second Dist. Court of E. Middlesex, 389 Mass. 508, 514 (1983), quoting Debnam v. Belmont, 388 Mass. 632, 635 (1983). See Dedham v. Labor Relations Comm’n, 365 Mass. 392, 396-397 (1974). The civil service system accomplishes its purpose by mandating that an adverse employment action be taken only for “just cause,” and by imposing on an appointing authority the obligation to comply with procedural requirements that are intended to protect the rights of a tenured employee. “If the commission finds that the appointing authority has failed to follow [the] requirements [of G. L. c. 31, § 41,] and that the rights of [any] person [filing a complaint] have been prejudiced thereby, the commission shall order the appointing authority to restore said person to his employment immediately without loss of compensation or other rights.” G. L. c. 31, § 42. The aforementioned language of G. L. c. 121B, § 29, and the provisions of G. L. c. 31, §§ 41-45, clearly are meant to protect tenured employees’ rights, but nothing therein dictates that the only avenue by which a housing authority employee who claims that he has been paid inadequate wages and involuntarily separated from his employment can seek redress is through administrative proceedings before the commission. To the contrary, the language in G. L. c. 31, § 42, stating that an aggrieved employee “may” file a complaint with the commission strongly suggests that the Legislature has not granted exclusive authority over all challenged employment actions to the commission. See Salem v. Massachusetts Comm’n Against Discrimination, 404 Mass. 170, 172-174 (1989) (Massachusetts Commission Against Discrimination and Civil Service Commission simultaneously resolved separate complaints filed by individual alleging failure to hire based on race); Dedham v. Labor Relations Comm’n, 365 Mass. at 400-404 (Civil Service Commission did not have exclusive jurisdiction over suspension of employee where claim of prohibited labor practice also could be brought before Labor Relations Commission). In circumstances where, as here, an employee’s claims focus not on an employer’s failure to satisfy the requirements of G. L. c. 31, § 41, but, rather, on the employer’s violation of an entirely different and separate statutory mandate, the employee is not required to proceed before the commission, but may commence a civil action. Of critical significance in this case is the nature of Fernandes’s claims. The AHA characterizes those claims within the framework of the civil service law, contending that determinations whether Fernandes was subjected to a retaliatory layoff or a “lowering] in rank or compensation,” G. L. c. 31, § 41, involve a “just cause” analysis. However, contrary to the AHA’s view of Fernandes’s complaint, the substance of his interrelated claims pertained to alleged violations of the Wage Act. More specifically, Fernandes asserted that the AHA intentionally misclassified his position and thereby failed to pay him the wages to which he was entitled, see G. L. c. 149, § 148, and that the AHA then terminated his employment in retaliation for his filing of a nonpayment of wage complaint with the Attorney General’s office, see G. L. c. 149, § 148A. Because the central thrust of Fernandes’s action was the AHA’s purported violations of the Wage Act, and not its alleged failure to act with “just cause,” Fernandes elected to seek redress for the harm he sustained by filing an action in the Superior Court, rather than by commencing administrative proceedings before the commission. Nothing in the civil service law precluded him from doing so. See generally Boston Police Patrolmen’s Ass’n v. Boston, 435 Mass. 718, 719-720 (2002) (we interpret statutory language according to intent of Legislature ascertained from its words considered in context of statute’s purpose). Similarly, nothing in the Wage Act excludes a housing authority employee from its protections or requires that such employee pursue relief from alleged wrongful conduct under the civil service system. “The purpose of the Wage Act is ‘to prevent the unreasonable detention of wages.’ ” Melia v. Zenhire, Inc., 462 Mass. 164, 170 (2012), quoting Boston Police Patrolmen’s Ass’n v. Boston, 435 Mass. at 720. See Lipsitt v. Plaud, 466 Mass. 240, 245 (2013). It was designed, among other purposes, “to protect wage earners from the long-term detention of wages by unscrupulous employers.” Melia v. Zenhire, Inc., supra, quoting Cumpata v. Blue Cross Blue Shield of Mass., Inc., 113 F. Supp. 2d 164, 167 (D. Mass. 2000). To ensure that employees are not penalized for asserting their rights to earned wages, the Legislature included an antiretaliation clause in the Wage Act, G. L. c. 149, § 148A, to protect employees, like Fernandes, who complain about violations of the statute. See Smith v. Winter Place LLC, 447 Mass. 363, 367-368 (2006); Fraelick v. PerkettPR, Inc., 83 Mass. App. Ct. 698, 704 (2013). When the Wage Act was first enacted in

Bernard Bulwer vs. Mount Auburn Hospital & others. No. 11-P-1583 Middlesex. November 26, 2012. September 24, 2014. Present: Berry, Kafker, Meade, Sikora, & Wolohojian, JJ. Further appellate review granted, 471 Mass. 1105 (2015). Hospital, Appointment to staff. Anti-Discrimination Law, Race. Employment, Discrimination, Retaliation. Contract, Employment, With hospital, Performance and breach, Interference with contractual relations. Libel and Slander. Unlawful Inteiference. Practice, Civil, Summary judgment. In a civil action alleging discrimination in employment based on race, the judge erred in granting summary judgment in favor of the defendant employer (a hospital), where the defendant did not meet its burden of establishing that there was no genuine issue of fact concerning pretext, in that, although there was ample evidence that the plaintiff’s performance in the residency program at issue fell short of expectations, there was also evidence that he performed well and that the plaintiff had not been given the same remediation opportunities as others who had struggled in the program; there was some evidence of institutional racism at the hospital; evidence of irregularities in the grievance process could support an inference that it was not fair or that the plaintiff had been treated in an unusual fashion from which pretext could be inferred; and the employer supplied shifting explanations for its actions. [328-333] Sikora, J., dissenting, with whom Meade, J., joined. In a civil action in which the plaintiff employee alleged breach of his employment contract, the judge erred in granting summary judgment in favor of the defendant employer, where evidence that the employer discriminated against the plaintiff on the basis of race was sufficient to support a claim of breach of a nondiscrimination policy, and where the defendant’s decision to terminate the plaintiff appeared to have stemmed from a process that did not afford all the procedural protections of the hospital’s policies or guidelines. [333-335] Sikora, J., dissenting, with whom Meade, J., joined. In a civil action claiming defamation based on two electronic mail messages sent by the defendant employer to employees concerning the termination of the plaintiff from his employment, the judge properly granted summary judgment in favor of the defendant, where the defendant enjoyed a conditional privilege to disclose defamatory information concerning an employee that was reasonably necessary to serve the defendant’s legitimate interest in the fitness of the plaintiff to perform his job. [335] In a civil action alleging retaliation by the defendant employer against the plaintiff employee, the judge properly granted summary judgment in favor of the defendant, where communications by the plaintiff relating to his disagreement with criticisms against his work did not constitute protected activity within the meaning of G. L. c. 151B, § 4(4); and where the plaintiff failed to demonstrate any causal connection between other alleged protected activity (i.e., the filing of a complaint with the Massachusetts Commission Against Discrimination) and the supposed retaliation. [335-336] In a civil action alleging tortious interference on the part of three individual defendants with the plaintiff’s contractual employment relationship with the defendant employer, the judge properly granted summary judgment in favor of the defendants, where the record did not raise a genuine issue of fact regarding malevolence on the part of those individual defendants. [336] Civil action commenced in the Superior Court Department on February 22, 2008. The case was heard by S. Jane Haggerty, J., on a motion for summary judgment. Sara Discepolo for the plaintiff. Robert R. Hamel, Jr., for the defendants. Eric Flint, Ricardo Wellisch, and Lori Balestrero. This case was initially heard by a panel comprised of Justices Meade, Sikora, and Wolohojian. After circulation of the opinion to the other justices of the Appeals Court, the panel was expanded to include Justices Berry and Kafker. See Sciaba Constr. Corp. v. Boston, 35 Mass. App. Ct. 181, 181 n.2 (1993). Justice Sikora participated in the deliberation on this case and authored his separate opinion prior to his retirement. Wolohojian, J. The plaintiff, Dr. Bernard Bulwer, an experienced physician and a black man from Belize, became a first-year resident at Mount Auburn Hospital (hospital) in August, 2005. He joined the residency program under a one-year contract, with the possibility of advancement to a second year of residency upon successful completion of the first. Eight months into the program, he was told that the hospital would not extend a second-year contract to him but that he would be allowed to continue his residency through the end of his first year. One month later, however, he was terminated. This suit followed, in which Bulwer alleges discrimination and retaliation based on his race and national origin in violation of G. L. c. 151B, breach of contract, defamation, and tortious interference with his contractual relationship with the hospital. Summary judgment entered in favor of the defendants on all counts. We conclude that the summary judgment record sufficed to entitle Bulwer to have a jury decide his discrimination and breach of contract claims, but that summary judgment was properly entered on his remaining claims. Accordingly, we affirm in part and reverse in part. 1. The summary judgment record. In reviewing a grant of summary judgment, we assess the record de nova and take the facts, together with all reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party. Godfrey v. Globe Newspaper Co., 457 Mass. 113, 119 (2010). “[T]he court does not pass upon the credibility of witnesses or the weight of the evidence [or] make [its] own decision of facts.” Shawmut Worcester County Bank, N.A. v. Miller, 398 Mass. 273, 281 (1986), quoting from Attorney Gen. v. Bailey, 386 Mass. 367, 370 (1982). Viewing the facts in this light, we then determine whether the moving party has affirmatively shown that there is no real issue of fact, “all doubts being resolved against the party moving for summary judgment.” Ibid. The record at hand, viewed with these principles in mind, showed the following. a. Bulwer’s background and the hospital’s residency program. Bulwer is a black male of African descent whose nation of origin is Belize. In the spring of 2005, he contacted the hospital to inquire about a possible position in its internal medicine residency program. The director of the program, Dr. Eric Flint, interviewed Bulwer and believed him to be personable and capable. Flint followed up on the interview by verifying Bulwer’s previous professional experience and confirming that he had performed satisfactorily at those positions. Based on his favorable impressions and the satisfactory results of his due diligence, Flint recommended that Bulwer be accepted into the program. Bulwer was not a typical applicant to the hospital’s residency program because he was already an experienced physician. Before joining the program, Bulwer had sixteen years of professional experience as a physician, and had certified postgraduate specialist training in nutrition, diabetes and metabolic medicine, cardiovascular disease, and echocardiography. He had authored or coauthored three books, and had over forty scientific publications. The first year residency program typically consists of twelve one-month rotations, and there are forty-two residents in the program in any given year. The program is accredited by the Accreditation Counsel for Graduate Medical Education (ACGME) and governed by that organization’s requirements. As pertinent here, the ACGME required that: “e. Conditions for reappointment; “(1) Nonrenewal of agreement of appointment: [The hospital] must provide a written institutional policy that conforms to the following: In instances where a resident’s agreement is not going to be renewed, [the hospital] must ensure that its ACGME-accredited programs provide the resident(s) with a written notice of intent not to renew a resident’s agreement no later than four months prior to the end of the resident’s current agreement. However, if the primary reason(s) for the nonrenewal occurs within the four months prior to the end of the agreement, [the hospital] must ensure that its ACGME-accredit-ed programs provide the residents with as much written notice of the intent not to renew as the circumstances will reasonably allow, prior to the end of the agreement. “(2) Residents must be allowed to implement the institution’s grievance procedures as addressed below if they have received a written notice of intent not to renew their agreements. “f. Grievance procedures and due process: [The hospital] must provide residents with fair and reasonable written institutional policies on and procedures for grievance and due process. These policies and procedures must address “(1) academic or other disciplinary actions taken against residents that could result in dismissal, nonrenewal of a resident’s agreement or other actions that could significantly threaten a resident’s intended career development; and, “(2) adjudication of resident complaints and grievances related to the work environment or issues related to the program or faculty.” Bulwer entered into a one-year medical resident agreement (agreement) with the hospital covering the period of August 29, 2005, to August 28, 2006. The agreement provided that the hospital agreed to comply with the ACGME requirements. As noted above, one of those requirements was that the hospital have written grievance and due process policies, which it did. Certain of those policies are relevant to Bulwer’s claims, and we set them out here: “4----In instances where a resident’s agreement is not going to be renewed, the training program will provide the resident with written notice of intent not to renew a resident’s agreement no later than four months prior to the end of the agreement. . . . Residents are allowed to implement the due process procedure as addressed below if they have received a written notice of intent not to renew their agreements. “II. Due Process Procedures: “Upon request by a resident, program director, member of the teaching staff, administration or patient for review of an issue under the scope of this policy an Ad Hoc Committee will be assembled. “Composition: “The Ad Hoc Committee will be composed of the ACGME Designated Institutional Official/Director of Medical Education, the Chairs of the Departments of Medicine and Radiology, the Program Directors of the training programs in Medicine and Radiology, the houseofficer, and a houseofficer representative that is mutually agreed upon by the Director of Medical Education and the houseofficer under discussion. “Fair Hearing: “The resident is assured of the fundamental aspects of a fair hearing including written statement of the specific issues from the Department Chair, at least 5 days notice of the Due Process Committee meeting, the opportunity to be present and to rebut the evidence, and the opportunity to present any other information. « « “All matters upon which any decision is based must be introduced into evidence at the proceeding before the Ad Hoc Due Process Committee in the presence of the resident. . . . Appeal of the decision of the hearing is limited to matters introduced at the hearing and made available to the resident.” b. Bulwer’s performance in the program. Under this contractual framework, Bulwer began his residency. His first rotation was in the emergency department, where he received strong evaluations. For example, at least two physicians evaluated Bulwer as “outstanding” during this rotation, and commented that “Dr. Bulwer... knows more cardiology and has better echo skills than I do, [is] professional, enthusiastic, [gives] great presentations, [and is a] pleasure to work with.” Five others rated him “above average,” commenting that he was “knowledgeable, responsible, [and had a] pleasant demeanor[, and excellent work ethic,” that he was “very good, works hard [and is] excited to be at work and looks to improve every shift,” that he “[w]arks hard[, is a] [w]onderful person[, and g]reat with patients and staff,” and that he is“ [v]cry knowledgeable, extremely hardworking and conscientious [, and h]as great rapport with fellow physicians and staff.” He was assessed to be mature and a pleasure to work with. Significantly, Dr. Gary Setnik, head of the emergency department, in response to a request that he assess Bulwer’s performance over a period of months in the emergency department, wrote: “Dr. Bulwer is universally held in high regard by the staff I polled and by myself. He has been totally reliable, coming in early, and staying late on most shifts. He aggressively works to see as many patients as possible. His presentations are complete, his management plans appropriate, and his procedural skills very good. Aside from some very minor documentation issues, and his failure to assure that the admitting resident was called on one case, his performance has been outstanding. He is in the top 10% of the medical house-officers who have rotated in the E[mergency] Department] over the last several years.” By contrast, Bulwer’s evaluations during his next rotation through the medicine intensive care unit (MICU) were not of the same sort. In that rotation, he received three strongly negative evaluations. That said, the assessment of Bulwer’s performance in the MICU was not uniform. Dr. Soon-11 Song reported a positive view of Bulwer’s performance in the MICU: “His strengths were that he had procedural skills and knowledge base well above someone at an intern level. He also was pleasant to work with. He had a good sense of his own limitations, and asked questions often in order to clarify issues. I think his ability to gather information in history taking was quite good and thorough. Above all, he maintained composure and a good attitude, despite the fact that we had an especially difficult night of no sleep and challenging patients requiring multiple attending input in the middle of the night.” During October of 2005 (the same month of Bulwer’s MICU rotation), the first-year residents at the hospital (like other first-year residents nationally) were required to take a national standardized test designed to test their medical knowledge relative to their peers. Bulwer scored in the top one-third nationally on that test, and his results were consistent with those of his peers at the hospital. On October 26, 2005, Bulwer sent an electronic mail message (e-mail) to Flint, the director of the internal medicine residency program, to address the negative comments Bulwer had received during his MICU rotation. Bulwer did not believe those reviews were objective and asked Flint to obtain a more objective view of his performance by speaking with the physicians with whom he had actually seen patients: Drs. Hayat, Song, Tillinger, and Brady-Joyce. Flint did not speak with any of those individuals, even after Bulwer again expressed to Flint he felt that he was not being assessed objectively. Bulwer was not alone in this view of the MICU’s evaluation of his performance. Setnik, the chair of the emergency department, reported that the MICU team was unnecessarily critical of Bulwer and also that the MICU staff had harshly attacked members of the emergency department for favorably evaluating Bulwer’s performance: “It was about the same time that he was having difficulty in the [MICU] that we were criticized very heavily by members of the [MICU] team, and when I say we I mean the entire E[mergency] Department] staff, and some of them unbelievably harshly. An experience that I hadn’t previously had at Mount Auburn, to be honest with you and I have collected the emails and I could share them with you, but they are really quite harsh, and that led to a whole series of other discussions that we had and a reflection about maybe thinking that [Bulwer] had entered an area that was going to be a little bit more critical than it needed to be for a person in his circumstances, just and not having had clinical medicine for a while and the like.” On November 15, 2005, Dr. Lori Balestrero (who was Bulwer’s adviser for the residency program) met with him to discuss the feedback received on his performance in the MICU rotation. Bulwer again responded that he did not believe that the feedback was accurate. On December 1, 2005, Balestrero again met with Bulwer, after having met with the clinical competence committee (CCC) to identify areas in which Bulwer needed to improve. These areas were presented as part of a six-point plan that included meeting with his adviser weekly to review Bulwer’s progress. Those meetings did not occur. Similarly, although the action plan called for a follow-up meeting between Bulwer, Balestrero, and a CCC representative after the December evaluations were received, that meeting too did not occur. Bulwer next rotated into “wards,” where several evaluations of his performance were on the whole positive, although they also noted some areas of weakness. One such evaluation read, “Great job! Very bright/knowledgeable. Be concise, people get lost sometimes lo[ ]sing the big picture of the story you are telling. Much improvement seen!” Song, who supervised Bulwer directly, gave the following detailed assessment of Bulwer’s performance during his wards rotation, responding specifically to the areas of concern raised during the MICU rotation: “1____Bernard’s ability to interpret and analyze clinical data, and formulating a plan of management is excellent and in the 10% of the intern class. His presentations on wards work rounds are methodical, to the point, and effective. “2. ... He has a good sense of humor and speaks even of those who have criticized, him with respect. The main issue here I think is that his behavior has been misconstrued in the past as arrogance in his zeal to impart instruction. However, he has demonstrated nothing but caring, concern, and team spirit this month on wards. His interactions with nursing and patients in my observation demonstrated no serious deficiencies requiring me to give feedback to him. “3. ... I have been mindful when I visit Bernard’s patients to assess their subjective and emotional responses to his presence in the room. These are the more intangible things which may be difficult to quantify, but at no time have I sensed tension on the part of Bernard’s patients toward him. I have on several occasions observed him interacting with patients when he was initially unaware of my presence and I have come to the same conclusion. It is difficult for me to understand past allegations in this regard, and if true, certainly do not leave their residue today. “4. ... In honesty, there are a few times when I felt the need to give constructive criticism to Bernard. I believe the manner in which feedback is given is important with any scenario. I get the impression that Bernard may be sensitive to feedback given in a humiliating manner. My approach has been to give feedback in the spirit of gentleness, and of emphasizing ensuring] of proper patient care. With this approach, I have had no problems with Bernard, as I interact with him as one professional colleague to another, and he understands this approach as my particular style. “In sum, Bernard has areas of weakness and strength as any other intern. But as an intern, I have seen residents with far less clinical acumen and interpersonal skills graduate from the program.” By contrast, Dr. Erica Bial considered Bulwer’s performance during his wards rotation to be “horrendous.” There is evidence in the record, however, to suggest that Bial had acted inappropriately towards Bulwer, including berating him in public in an inappropriate way, with her “voice raised and . . . sp