Retaliation Cases

Sara Ciccarelli vs. School Department of Lowell. No. 06-P-1537. Middlesex. October 18, 2007. December 7, 2007. Present: McHugh, Kafker, & Grainger, JJ. Employment, Retaliation. School and School Committee, Superintendent of schools. Witness. Damages, Punitive. Evidence in a civil action supported the jury’s finding that the the defendant city school department retaliated against the plaintiff, a provisional teacher, in violation of G. L. c. 151B, § 4(4), by suddenly and unexpectedly failing to reappoint her, four days after her name appeared on a witness list of another teacher who had filed a complaint with the Massachusetts Commission Against Discrimination, where the deputy superintendent of the school department had authorization to take such adverse employment action against the plaintiff [791-793], who was disadvantaged regardless of an offer of reemployment one month after the original decision [793]; and where the jury properly could have inferred that the deputy superintendent knew of the plaintiff’s protected activity in appearing on the other teacher’s witness list and denied her reemployment because of it [793-794], the issue of knowledge being one that did not require a special jury question [794-795], In a retaliation case brought by a provisional teacher under G.'L. c. 151B, § 4(4), alleging that the defendant city school department failed to rehire her because her name appeared on another teacher’s witness list in a discrimination action against the city, the jury properly considered limited evidence of that discrimination action in awarding punitive damages, where the evidence provided the necessary context for the plaintiff’s claim. [795] In a retaliation case, sufficient evidence existed to place the issue of punitive damages before the jury, where the failure of the deputy superintendent of the defendant city school department to rehire the plaintiff after her name appeared on a witness list in another discrimination action against the city constituted outrageous behavior on the part of a high-ranking public official in charge of the education of a city’s children, reflecting either an evil motive (to punish or pressure the plaintiff concerning the protected activity of testifying) or reckless indifference to the rights of others, thereby requiring condemnation and deterrence [795-797]; moreover, the award was not excessive as a matter of law, in light of the degree of reprehensibility of the conduct at issue, the ratio of punitive damages to the actual harm to the plaintiff, and the criminal penalties that could be imposed for comparable misconduct [797-799]. This court declined to consider issues that were not properly preserved on appeal. [799] This court affirmed a Superior Court judge’s award of attorney’s fees to the prevailing party in a civil action and allowed that party to file an application for appellate' attorney’s fees and costs. [799] Civil action commenced in the Superior Court Department on August 3, 2000. The case was tried before Paul A. Chernoff, J., and motions for judgment notwithstanding the verdict, for a new trial, and for remittitur were heard by him. Kimberly A. McMahon for the defendant. Justine H. Brousseau (Nina Joan Kimball with her) for the plaintiff. Kafker, J. Just a few days after she appeared on a witness list of another teacher who had filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) against the city of Lowell (city) school department for sex discrimination, the plaintiff, Sara Ciccarelli, unexpectedly learned that she would not be reappointed as a provisional teacher. Ciccarelli then brought this action against the city for retaliation pursuant to G. L. c. 151B, § 4(4). The jury found for Ciccarelli and awarded her $1,800 for lost pay, $8,200 for emotional distress, and $50,000 in punitive damages. The trial judge awarded Cic-carelli $102,252.54 in attorney’s fees. On appeal, the city claims that there was insufficient evidence to support the jury’s finding of retaliation and the award of emotional distress and punitive damages. The city further maintains that Ciccarelli’s counsel made improper references to an uncalled witness in her closing argument. We conclude that the evidence supports the jury’s finding of retaliation and its award of punitive damages. We also conclude that the city failed to preserve the issues of the uncalled witness references and emotional distress damages, and we affirm the judgment. Background. The jury were warranted in finding the following facts. Ciccarelli began teaching Spanish at Lowell High School (school) in the 1995-1996 school year under a provisional teaching certificate. This teaching experience was part of a five-year program to gain advanced provisional certification. The program was supervised by Mary Ann Simensen, the coordinator for staff development programs. In addition to the teaching experience, the certification program required Ciccarelli to fulfil seven teaching competencies and complete fifteen hours of coursework before the end of the five-year period. After receiving the highest ratings in her evaluations, Cic-carelli was rehired for the 1996-1997 academic year. While Ciccarelli was completing her second year of teaching, another school employee, Patricia Kealy, filed a sexual discrimination complaint with the MCAD against the city. In the spring of 1997, Ciccarelli agreed to be a witness on Kealy’s behalf. In March of 1997, the headmaster of the school, William Samaras, recommended Ciccarelli for permanent hire and reappointment for the 1997-1998 school year. In a letter dated June 18, 1997, the superintendent, George Tsapatsaris, also stated the present intention to rehire her for the following school year. Shortly after that letter, the deputy superintendent of personnel, Dr. Helen Flanagan, reported that Ciccarelli successfully completed a supervised, mentored internship and fulfilled all seven teaching competencies. Flanagan’s job responsibilities included the hiring, recruitment, and professional development of the city’s teachers. As part of these responsibilities, she would issue “halts” and provide clearance for the rehiring of provisional teachers. On Thursday, July 31, 1997, the city’s attorney first received a list of potential witnesses in the Kealy case. Of the names on the list, Ciccarelli was the only provisional teacher. Four days later, Flanagan called Ciccarelli to discuss her lack of coursework toward advanced certification. This telephone call was the first criticism of Ciccarelli’s progress in her two years of employment at the school. Even though Ciccarelli still had three years to complete these courses, Flanagan expressed concern about Ciccarelli’s ability to do so. Ciccarelli continued to stress her intentions to take the courses. However, Flanagan refused to accept these assurances. Flanagan told Ciccarelli that there was “no possibility of [her] coming back,” unless she took the courses immediately. Flanagan ended the call by asking, “How can I rehire you, can you answer that?” After that phone call, Ciccarelli consulted an attorney in order to be rehired. On August 13, 1997, her attorney sent a letter to Flanagan requesting Ciccarelli’s reinstatement and pointing to the “more than coincidental” fact that her employment was terminated just days after the city learned of her status as a witness in the Kealy case. This request was unsuccessful, as Flanagan continued to insist that by delaying the coursework, Ciccarelli was not working in good faith. Based on these conversations with Flanagan, Ciccarelli did not attend the teacher orientation on August 26, 1997. School began the following day. The chairperson of the foreign language department, Priscilla Sicard, noticed that Ciccarelli was absent and asked the headmaster, Samaras, if he knew the reason for her absence. Samaras responded, “She’s not coming back.” As he later testified at trial, Samaras was aware that Ciccarelli was not returning for some time prior to the first day of school. On August 29, 1997, Ciccarelli wrote a letter to Flanagan in a final attempt to get her job back. In the letter, Ciccarelli stressed her progress toward certification and her continued intention to complete the required coursework before the five-year period expired. This letter was also unsuccessful. Two weeks into the 1997-1998 school year, the city still could not find anyone to fill Ciccarelli’s position. Ciccarelli finally received an offer of reinstatement on September 9, 1997, the day before she was scheduled to testify in the Kealy case. For Cic-carelli, the job offer came too late, as the school year had already started without her. The day after receiving the offer to return to work, Ciccarelli testified before the MCAD in the Kealy case. In the present case, Ciccarelli and Kealy both testified that Flanagan sat at the counsel table next to the city’s attorney during that earlier testimony. Ciccarelli initiated this action by lodging a complaint with the MCAD, which she then removed to Superior Court, alleging that the failure to rehire her was retaliation in violation of G. L. c. 15IB, § 4(4). The case went to trial, where Flanagan continued to insist that Ciccarelli was not rehired because of her lack of progress, and that she was not even aware of Ciccarel-li’s testimony in the Kealy case until she was deposed for this trial in 2002. However, the jury agreed with Ciccarelli and awarded her damages. The city promptly moved for judgment notwithstanding the verdict, a new trial, and remittitur. All three of these motions were denied by the trial judge. The judge allowed Ciccarelli’s motion for attorney’s fees, and final judgment entered against the city in the amount of $162,252.54. The city thereafter filed a timely appeal. 1. Standard of review. When reviewing the denial of a motion for judgment notwithstanding the verdict, the evidence is viewed in the light most favorable to the plaintiff, and all evidence favorable to the city is disregarded. Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 16 (1998). Christopher v. Father’s Huddle Café, Inc., 57 Mass. App. Ct. 217, 219 (2003). A trial judge may also set aside a jury verdict and grant a motion for new trial if the weight of the evidence suggests that the verdict was based on bias, misunderstanding, or prejudice. W. Oliver Trip Co. v. American Hoechst Corp., 34 Mass. App. Ct. 744, 748 (1993). A judge’s decision not to grant such a motion, however, will be overturned only upon an abuse of discretion. Gath v. M/A-COM, Inc., 440 Mass. 482, 492 (2003). 2. Retaliation claim. An employer may not “discharge, expel or otherwise discriminate against any person . . . because he has filed a complaint, testified or assisted in any proceeding under section five.” G. L. c. 151B, § 4(4), inserted by St. 1946, c. 368, § 4. A retaliation claim under c. 151B must fulfill three elements: (1) the employee engaged in a protected activity; (2) the employee faced an adverse employment consequence; and (3) the protected activity caused the adverse employment action. Mole v. University of Mass., 442 Mass. 582, 591-592 (2004). Because it is undisputed that Ciccarelli’s testimony in Kealy’s sexual discrimination case was a protected activity, the city only appeals the sufficiency of the evidence on the latter two elements. First, the city argues that Ciccarelli cannot demonstrate an adverse employment action because only school principals have the authority to hire and fire teachers, and the deputy superintendent, as a matter of law and fact, could not decide whether to rehire Ciccarelli. The Massachusetts Education Reform Act of 1993 (MERA) defines the authority to hire teachers as follows: “Principals employed under this section shall be responsible, consistent with district personnel policies and budgetary restrictions and subject to the approval of the superintendent, for hiring all teachers . . .” (emphasis added). G. L. c. 71, § 59B, as appearing in St. 1993, c. 71, § 53. Similarly, in the area of dismissal or demotion, MERA provides: “A principal may dismiss or demote any teacher or other person assigned full-time to the school, subject to the review and approval of the superintendent'’ (emphasis added). G. L. c. 71, § 42, as appearing in St. 1993, c. 71, § 44. We interpret the statute to provide a significant role to superintendents in the hiring and firing process. Their approval is required for both. Although the ultimate responsibility regarding such approval resides by statute with the superintendents themselves, they may authorize their deputies to take actions on their behalf in carrying out these statutory responsibilities. Furthermore, the school department may be held responsible for such actions. See College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. 156, 167 (1987). “It is clear that the Legislature intended that an employer be liable for discrimination committed by those on whom it confers authority.” Id. at 165. The jury here could reasonably conclude that Flanagan had authorization to act in the instant case, and that the exercise of that authority resulted in the decision not to rehire Ciccarelli. As to authorization, Flanagan herself testified: “My job duties were the hiring, the recruitment, ... the evaluation, professional development, everything associated with teachers and paraprofessionals.” According to Samaras, the school headmaster, Flanagan would issue “halts” if a provisional teacher would not be allowed to come back. Flanagan also stated to Ciccarelli, “How can I rehire you” (emphasis added). Additionally, Sama-ras testified to Flanagan’s significant role in the hiring and rehiring process, as did Sicard, the chairperson of the foreign languages department. The superintendent did not testify. In sum, there was sufficient evidence of Flanagan’s authority to act with regard to the rehiring of provisional teachers. There was also ample evidence for the jury to conclude that approval for the rehiring of Ciccarelli had been denied by Flanagan and that Ciccarelli had not simply resigned. Flanagan’s remarks to Ciccarelli — “There’s no possibility of [you] coming back” unless the coursework was begun immediately, and “How can I rehire you” — can be reasonably interpreted as statements indicating that she was not eligible for reappointment. Ciccarelli’s letters, all based on the explicit assumption that she had been discharged, were never contradicted, and her attempts to get her job back prior to the start of the school year were not successful. Headmaster Samaras understood that Ciccarelli was not returning and that she had not obtained approval for rehire. The decision not to rehire was an adverse employment action that disadvantaged Ciccarelli. See MacCormack v. Boston Edison Co., 423 Mass. 652, 662-663 (1996). The city argues nonetheless that there was no adverse employment action because Ciccarelli rejected her subsequent offer of reinstatement. While the rejected offer of reemployment may terminate Ciccarelli’s lost-pay damage calculation, it does not eliminate liability for the original decision not to rehire her. See Conway v. Electro Switch Corp., 402 Mass. 385, 389-390 (1988) (employee’s failure to mitigate through reinstatement terminated economic damages based on lost pay, but did not release employer from all liability). Here, the city did not offer Ciccarelli her job back until approximately one month later. This offer came too late for the city to claim that Ciccarelli was not materially disadvantaged. Ciccarelli has therefore presented sufficient evidence for a reasonable jury to conclude that she suffered an adverse employment action. Second, assuming there was an adverse employment action, the city argues that the evidence was insufficient to demonstrate that the adverse action (the decision not to rehire Ciccarelli) was caused by her protected activity (her appearance on the witness list in the Kealy case). The mere fact that an employee engaged in a protected activity before facing adverse consequences “is not sufficient to make out a causal link.” Mac-Cormack v. Boston Edison Co., 423 Mass. at 662 n.11. However, a jury may infer such causation if the adverse action occurs immediately after the employer becomes aware of the protected action. See Mole v. University of Mass., 442 Mass. at 592. “Close temporal proximity between the protected activity and the adverse employment action permits an inference of the causal nexus necessary for a finding of retaliation.” Ritchie v. Department of State Police, 60 Mass. App. Ct. 655, 666 (2004), quoting from Cooney, Understanding and Preventing Workplace Retaliation, 88 Mass. L. Rev. 3, 13 (2003). In the instant case, Ciccarelli’s rehire status changed suddenly and unexpectedly four days after her name appeared on the witness list in the Kealy case. Flanagan, a high-ranking school district official, was actively involved in both matters. Although the witness list letter was sent to counsel and not directly to Flanagan, the jury could have properly inferred that Flanagan had been informed of the list before she called Cic-carelli, because Flanagan was participating in the preparation of the defense in the Kealy case. She certainly knew about Cic-carelli’s appearance on the witness list on August 13, 1997, when she received the letter from Ciccarelli’s counsel. Flanagan’s credibility in the instant case was also put into question when she attempted to minimize her role in the Kealy case by claiming that she knew nothing about Ciccarelli’s testimony until her own deposition in 2002. The jury could have reasonably interpreted all of this evidence to establish that Flanagan knew of Ciccarelli’s protected activity and denied her reemployment because of it. Even though the jury could reasonably make these inferences, the city also argues that the trial judge erred by denying its request for a special verdict question regarding knowledge of the protected activity. No such special verdict question is required as the issue of knowledge was directly and correctly addressed in the jury instructions themselves. The judge here instructed the jury as follows: “The plaintiff must prove that the person responsible for taking the complained of action knew at the time that the plaintiff had exercised or engaged in protected activity .... If the jury finds that the person acting on behalf of the defendant took an adverse employment action against the plaintiff and knew at the time of the protected activity, then the jury must go on to determine the question of causation.” In fact, the judge went further, explaining to the jury why he did not include a separate special verdict question on knowledge: “Did Dr. Flanagan have actual knowledge of the plaintiff’s participation in protected activity at the time she rendered the employment decision in question. I didn’t feel I needed to put that question in because that is really a part of retaliation. In order for the jury to find there was retaliation they would have to find that the person who took the employment action knew of the participation in the protected activity at the time that they took the action. So I didn’t put it in there.” In sum, the judge’s instructions properly addressed the issue of knowledge. No special verdict question singling out this issue was required for the reasons explained by the trial judge himself. 3. Punitive damages. With regard to punitive damages, the city first argues that evidence of Kealy’s discrimination case was irrelevant and prejudicial, and thus improperly considered by the jury in awarding punitive damages. In order for evidence to be relevant, it must have some tendency to prove a fact that is material in this case. Harris-Lewis v. Mudge, 60 Mass. App. Ct. 480, 485 (2004). In this case, the limited evidence of Kealy’s discrimination suit that was introduced prov

Ahadul Quazi vs. Barnstable County. No. 06-P-486. Worcester. October 16, 2007. December 3, 2007. Present: Lenk, Smith, & Vuono, JJ. County, Employees. Employment, Retaliation. Labor, Overtime compensation. In a civil action brought by an employee alleging retaliatory discharge in violation of G. L. c. 149, § 185, the judge erred in granting summary judgment in favor of the employer on the ground that the employee had failed to provide the employer with prior written notice of his claim, where the plaintiff’s claim was brought only under G. L. c. 149, § 185(b)(3), a subsection of the statute that was not subject to a written notice requirement. [783-784] In a civil action brought by an employee alleging that his former employer had failed to pay overtime wages due to the employee on the date of his discharge, in violation of G. L. c. 149, § 148, the judge properly granted summary judgment in favor of the employer, where the employee, as a “bona fide executive” or “professional person,” was exempt from the provisions of the overtime pay statute and therefore was owed no overtime compensation on his last day of work. [784-786] Civil action commenced in the Superior Court Department on September 8, 2004. The case was heard by James H. Wexler, J., sitting by special assignment, on a motion for summary judgment. Paul R. Chomko for the plaintiff. Daniel G. Skrip for the defendant. Vuono, J. At issue in this appeal is whether summary judgment was correctly entered in favor of Barnstable County (county) thereby dismissing Ahadul Quazi’s two-count complaint alleging retaliatory discharge, in violation of G. L. c. 149, § 185 (count I), and failure to pay overtime wages, in violation of G. L. c. 149, §§ 148 and 150 (count II). For the reasons set forth below, the summary judgment is reversed in part and affirmed in part. 1. Facts. Viewed in the light most favorable to Quazi, the nonmoving party, the materials in the record established the following. See Carleton v. Commonwealth, 447 Mass. 791, 793 (2006). In May, 2003, George Heufelder, the director of the county’s department of health and the environment (department), hired Quazi to serve as the director of the county laboratory (laboratory). Set at grade STP-7, step 3, the position was full-time, with an annual salary of $56,545.34. Heufelder was Quazi’s immediate supervisor. When Quazi was hired, he was not informed that his position had a mandatory six-month probationary period. The laboratory was responsible for testing water quality throughout the county. The laboratory personnel looked for specific inorganic and organic compounds in water samples. If these compounds were detected, the laboratory personnel would quantify the levels. Quazi, who holds undergraduate and graduate degrees in chemistry, had extensive experience with inorganic and organic molecular analysis as well as the maintenance of diversified instruments and computer systems. He was also familiar with both mandatory State and Federal environmental methods and protocols. The technical aspects of his job, Quazi indicated, were in the “[sjpecialized field of chemistry.” When Quazi first started working, the laboratory lacked discipline and structure; Quazi claimed that nobody had listened to Heufelder or to the previous laboratory director. Brought in to make changes, Quazi claimed that during the course of his employment, he worked continuously to improve these problems as well as the work habits of the employees. As the director of the laboratory, Quazi was responsible for managing the “paramount” technical tasks such as buying and running the instruments and troubleshooting. Quazi also managed seven employees within the laboratory. According to Quazi, Heufelder “massively interfered” with Quazi’s position, including Quazi’s hiring authority, because of Heufelder’s desire to “bring in people of his own choice.” When Quazi was working, Heufelder would come up to the laboratory twenty to twenty-five times per day. Quazi mentioned Heufelder’s “too frequent[]” visits “to the [county] commission [and the county] administrator.” In June, 2003, Heufelder told Quazi to keep track of all his overtime hours. In July, 2003, Quazi first learned about the probationary period. At that time, he asked the secretary for a copy of the employee handbook. While serving as the director of the department, Heufelder, according to Quazi, continued to manage the Alternative Septic Systems Test Center (center), a private customer that owed a significant amount of money to the laboratory in unpaid bills. The center’s statement of account dated September 18, 2003, showed that the center owed the laboratory $19,044.50. When Quazi realized that the laboratory management report of the same date showed that a credit of $8,658.51 had been given to the center on July 8, 2002, he asked Heufelder for an explanation. Heufelder never provided Quazi with an appropriate explanation for the credit. Several times between June and September, 2003, Heufelder asked Quazi to credit the center’s account in order to bring the balance owed to zero. Believing that Heufelder’s requests were illegal, Quazi refused to alter the data in the laboratory’s computer system. When Quazi refused to comply, Heufelder hired Elena Hughes, a friend of Heufelder’s secretary, to perform the task. Heufelder did not advertise or post the position as required by the employee handbook. In October, 2003, Quazi reported the illegal request and other alleged misbehavior by Heufelder to Margaret Downey, the assistant county administrator. Downey stated to Quazi that she did not know whether the center was a county account. Although Downey promised Quazi that she would speak with Heufelder and get back to Quazi, she never did. In November and December, 2003, Quazi also spoke with Mark Zielinski, the county administrator, about these issues, to no avail. On November 7, 2003, Heufelder asked Downey to extend Quazi’s probationary period for another three months. Soon thereafter, at Heufelder’s request, Quazi met with Kathleen Gilligan, a social worker, as part of an evaluation of personnel issues within the laboratory. On December 8, 2003, Quazi was terminated by Heufelder and Zielinski. In January, 2004, Quazi sent Zielinski a letter asking to be paid for “[u]nofficial [o]vertime [h]ours.” After receiving no response, Quazi filed a complaint about the unpaid overtime with the Attorney General’s office. In August, 2004, Quazi was given leave to pursue a civil claim against the county for the unpaid compensation. Quazi’s two-count complaint followed. 2. Discussion, a. Retaliatory discharge in violation of G. L. c. 149, § 185, the whistleblower statute. The judge dismissed count I of Quazi’s complaint on the ground that Quazi had failed to provide the county with prior written notice of his claim. Although the judge was correct that no such notice was given, the dismissal was in error. Quazi’s action was brought only under G. L. c. 149, § 185(b)(3), which, unlike G. L. c. 149, § 185(b)(1), is not subject to the written notice requirement of G. L. c. 149, § 185(c)(1)., See Mailloux v. Littleton, 473 F. Supp. 2d 177, 184-185 (D. Mass. 2007). By its terms, § 185(c)(1) relates only to an employee’s protection under § 185(A)(1). Quazi’s complaint specifically alleges that his employer extended his probationary period and ultimately fired him because he refused to participate in Heufelder’s illegal acts, i.e., falsely crediting an overdue account of one of the laboratory’s private customers. As such, Quazi’s claim falls squarely within § 185(b)(3). Quazi does not make any § 185(b)(1) allegation that he suffered retaliation because of his disclosures to superiors (or to a public body). Therefore, this case is distinguishable on its facts from Dirrane v. Brookline Police Dept., 315 F.3d 65, 73 (1st Cir. 2002), upon which the county relies. Dirrane essentially held that a police officer’s filing of his whistleblower claim in court constituted “a disclosure” to a “public body” within the meaning of § 185(c)(1), thereby triggering the written notice requirement. Ibid. The officer’s claim in Dirrane, however, alleged violations only of § 185(b)(1) (retaliation due to officer’s reporting to superiors of abuses in police force), not § 185(b)(3). See Dirrane v. Brookline Police Dept., supra at 67-68, 72. Because no written notice was required of Quazi under the circumstances, so much of the summary judgment as dismisses count I of the complaint must be reversed. b. Failure to pay wages in violation of G. L. c. 149, § 148, the weekly payment of wages statute. An employer violates the weekly payment of wages statute by failing to pay an employee all wages due on the date of his discharge. See G. L. c. 149, § 148. Here, Quazi claimed that the county violated the statute by failing to pay him for a significant amount of overtime wages. We agree with the judge that as a matter of law, there was no violation of the statute. Under the overtime pay statute, an employer must pay an employee at least time and one-half for any hours worked in excess of forty in the course of one week. See G. L. c. 151, § 1A; Goodrow v. Lane Bryant, Inc., 432 Mass. 165, 174 (2000). Twenty categories of employees, however, are expressly exempted from the provisions of the overtime pay statute. See G. L. c. 151, § 1A(1)-(20). As herein relevant, the overtime pay statute does not apply to any person employed “as a bona fide executive, or administrative or professional person or qualified trainee for such position earning more than eighty dollars per week.” G. L. c. 151, § 1A(3), as appearing in St. 1961, c. 431. The Legislature provided no further clarification regarding the meanings of these terms. See Goodrow v. Lane Bryant, Inc., 432 Mass. at 170. The Supreme Judicial Court, however, has ruled that in interpreting the State statute, the courts should look for guidance to analogous Federal law and to the common meaning of these words. See id. at 170-173. Here, Quazi’s high-level job position, comfortable grade of salary, and job duties established his exempt status as a “bona fide executive, or administrative or professional person.” See id. at 171-173, and 29 C.F.R. §§ 541.0 et seq. (2003), the interpretative regulations promulgated under the Federal Fair Labor Standards Act of 1938. As the county laboratory director, Quazi’s primary duties were divided between his “paramount” technical functions and his managerial tasks. The water analysis process, which Quazi oversaw, required advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction. See 29 C.F.R. §§ 541.3(a)(1), 541.301 (2003) (learned professions); Reich v. Newspapers of New England, Inc., 44 F.3d 1060, 1070, 1077-1078 (1st Cir. 1995). Quazi’s managerial tasks included purchasing and maintaining laboratory equipment, troubleshooting, directing the work of seven employees, and improving the over-all structure and discipline of the laboratory, a policy-making task involving a significant level of discretion. See Goodrow v. Lane Bryant, Inc., 432 Mass. at 172-173. It matters not that there was no evidence in the record whether Quazi performed his “professional” technical tasks or his “executive” managerial tasks more frequently. Both categories of tasks were covered by the exemption specified in § 1A(3). In sum, Quazi was employed as a “bona fide executive” or a “professional person” and was, thus, exempt from the overtime provisions of § 1A. Contrast Goodrow v. Lane Bryant, Inc., 432 Mass. at 172-173. As such, no overtime compensation was due him on his last day of work. Accordingly, the judge properly dismissed count II of the complaint, Quazi’s claim under the weekly payment of wages statute. 4. Conclusion. So much of the judgment as dismisses count I of the complaint is reversed, and the judgment is otherwise affirmed. So ordered. Our conclusion is based on the statutory language, which reads in relevant part as follows: “(b) An employer shall not take any retaliatory action against an employee because the employee does any of the following: “(1) Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer. . . that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law . . . “(3) Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law .... “(c)(1) Except as provided in paragraph (2), the protection against retaliatory action provided by subsection (b)(1) shall not apply to an employee who makes a disclosure to a public body unless the employee has brought the activity, policy or practice in violation of a law, or a rule or regulation promulgated pursuant to law ... to the attention of a supervisor of the employee by written notice and has afforded the employer a reasonable opportunity to correct the activity, policy or practice. “(2) An employee is not required to comply with paragraph (1) if he: (A) is reasonably certain that the activity, policy or practice is known to one or more supervisors of the employer and the situation is emergency in nature; (B) reasonably fears physical harm as a result of the disclosure provided; or (C) makes the disclosure to a public body as defined in clause (B) or (D) of the definition for ‘public body’ in subsection (a) for the purpose of providing evidence of what the employee reasonably believes to be a crime.” (Emphasis added.) G. L. c. 149, § 185, inserted by St. 1993, c. 471. In the trial court and the initial briefs on appeal, the question litigated by the parties was whether Quazi met any of the exceptions under G. L. c. 149, § 185(c)(2), to the § 185(c)(1) requirement of written notice. Thus, Quazi, the county, and the motion judge all assumed that Quazi’s claim was subject to § 185(c)(1). We have chosen in our discretion to examine and rule on that assumption; although we hesitate to consider any matter not previously raised, here the issue has been fully briefed by the parties (in supplemental memoranda of law) and argued orally, the question is unanswered in the Commonwealth, the matter is likely to arise again, and as it concerns the whistleblower statute, it carries public importance. See Cottam v. CVS Pharmacy, 436 Mass. 316, 320 (2002), and cases cited. We find no merit in the county’s argument that by bringing his § 185(b)(3) claim to the court (a public body), Quazi necessarily “channelled]” that claim through § 185(b)(1), thus making § 185(c)(1) applicable. The county’s contention ignores the relevant language of § 185(b): “An employer shall not take any retaliatory action against an employee because the employee ... (1) discloses. . . to a public body...” (emphasis added). Quazi alleges § 185(b)(3) retaliation that preceded, and did not result from, his court filing. We thus have no occasion to opine on the correctness of the Dirrane court’s reading of § 185(c)(1). The Supreme Judicial Court recognized that 29 U.S.C. § 213(a)(1), the cognate exemption under the Federal Fair Labor Standards Act of 1938, was “nearly identical” to § 1A(3). Goodrow v. Lane Bryant, Inc., 432 Mass. at 171. To the extent that Quazi argues in his brief that he could not be considered a bona fide executive because he had no power to hire or fire employees as required by 29 C.F.R. § 541.1(c) (2003), see Goodrow v. Lane Bryant, Inc., 432 Mass. at 171 n.5, Quazi mischaracterizes his deposition testimony. Although he first denied that he had such authority, he subsequently explained that as the laboratory director, he was in fact given the official authority to hire and fire employees with the involvement of the county. By his own account of his job description, Quazi spent little time on nonexempt tasks. Contrast Goodrow v. Lane Bryant, Inc., 432 Mass. at 166-167, 172-173. Quazi’s passing suggestion in his brief that as a State employee he was entitled to overtime pay under G. L. c. 149, § 30B, was not developed. We deem it waived. See Jordan v. Superintendent, Mass. Correctional Inst., Cedar Junction, 53 Mass. App. Ct. 584, 587 n.6 (2002).