Whistleblower Cases

JANE P. HELM, Plaintiff v. APPALACHIAN STATE UNIVERSITY, and KENNETH E. PEACOCK, in his official capacity as Chancellor of Appalachian State University, Defendants No. COA08-30 (Filed 16 December 2008) 1. Public Officers and Employees— whistleblower action— termination of university employee — refusal to purchase real estate option The trial court properly dismissed a whistleblower action for failure to state a claim where plaintiff was terminated as a university vice chancellor for business after she objected to the purchase of a real estate option from a friend of a trustee when she knew that the university would not have the funds to purchase the property within the option period. Although plaintiff argued that the chancellor’s pursuit of the option constituted misappropriation of state resources, an option has an inherent, intrinsic value distinct from the purchaser’s ability to exercise it. Plaintiff did not sufficiently allege that she was engaged in a protected activity under the Act. 2. Constitutional Law— objection to real estate option purchase — transaction not misconduct — adequate state remedy It was not necessary to consider plaintiff’s constitutional claims arising from her dismissal as a university vice chancellor after she refused to buy an option on real estate for the university. It was decided elsewhere in the opinion that the option had value and that defendants’ pursuit of the option did not constitute misconduct; moreover, the Whistleblower Act creates an adequate state remedy and precludes plaintiff’s claims. 3. Immunity— sovereign — whistleblower claim against university — 12(b)(6) dismissal The issue of whether a whistleblower claim against a state university was properly dismissed on sovereign immunity was not reached where it had already been determined that the trial court properly dismissed plaintiff’s complaint for failure to state a claim under Rule 12(b)(6). 4. Pleadings— motion to amend — not properly made The trial court did not err by denying plaintiff the opportunity to amend her complaint where she did not make a proper motion to amend, either orally or in writing. Moreover, assuming a motion to amend, plaintiff did not show any abuse of discretion in its denial. 5. Civil Procedure— 12(b)(6) dismissal — no findings or conclusions The trial court did not err by refusing to make findings and conclusions explaining a dismissal under N.C.G.S. § 1A-1, Rule 12(b)(6). Judge CALABRIA concurring in part and dissenting in part. Appeal by plaintiff from order entered 28 August 2007 by Judge Mark E. Powell in Watauga County Superior Court. Heard in the Court of Appeals 20 August 2008. Patterson Harkavy, LLP, by Jessica E. Leaven and Burton Craige, for plaintiff Attorney General Roy Cooper, by Assistant Attorney Generals John P. Scherer II and Kimberly D. Potter, for defendants. ELMORE, Judge. Jane P. Helm (plaintiff) asserted claims against her former employer, Appalachian State University (defendant Appalachian State or the university) and its Chancellor, Kenneth E. Peacock (defendant Peacock), in his official capacity for violations of the North Carolina Whistleblower Act (the Whistleblower Act) and the North Carolina Constitution. She appeals from a 28 August 2007 order dismissing her complaint with prejudice. For the reasons stated below, we affirm the order of the trial court. I. Background Plaintiff alleged the following facts in her 31 May 2007 complaint: Plaintiff became the Vice Chancellor for Business Affairs at defendant Appalachian State in 1994. Her duties included managing the university’s business and financial affairs, including oversight of some campus construction. During her tenure at the university, plaintiff performed her professional duties in a satisfactory manner and her employment file contained no complaints or disciplinary actions. In 2004, defendant Peacock became plaintiff’s supervisor. In early May 2006, defendant Peacock asked plaintiff to issue a non-refundable $10,000.00 check from the University Endowment Fund to Michael Cash “to obtain an option to purchase real property for $475,000 that could be exercised on or before September 1, 2006.” In 2005, Cash had approached James M. Deal, Jr., who was a member of the university’s Board of Trustees, to ask if the university was interested in purchasing a 10.889 acre property in Boone (the property). Cash and Deal had a prior business or personal relationship and, in May 2006, either Cash or Deal informed defendant Peacock that “Cash was in need of funds to pay his mortgage on this real property.” Plaintiff informed defendant Peacock that “there were insufficient funds for [the university] to exercise the option on or before September 1, 2006.” Defendant Peacock instructed “plaintiff to pay Mr. Cash the $10,000 because Mr. Cash needed the money to pay his mortgage.” Plaintiff again refused, explaining that the University Endowment Fund did not have sufficient funds to exercise the option and that “paying $10,000 to Mr. Cash under these circumstances would be an inappropriate use of state funds.” Plaintiff then complained to a university attorney, David Larry, and expressed her belief that “paying $10,000 to Mr. Cash would be an inappropriate use of state funds because the $10,000 would be used to pay his mortgage and there were insufficient funds to exercise the option.” Larry responded, “Do you think he would ever admit he said that in a court of law?” Defendant Peacock’s Chief of Staff, Lorin Baumhover, later informed plaintiff that “he could obtain the $10,000 for the option from the Provost if plaintiff could come up with the $465,000 to exercise the option.” Plaintiff maintained that there were insufficient funds to exercise the option and that sufficient funds would not be available by September 2006, when the option expired. “Mr. Baumhover responded that defendant Peacock wanted this to happen. He also stated that Mr. Cash had sent several e-mails saying he needed to make his mortgage payment.” On 2 June 2006, the Endowment Committee of the university’s Board of Trustees approved the purchase of the option for $10,000.00; plaintiff abstained from the vote. That day, defendant Peacock requested a meeting with plaintiff, during which he told her that he had been “uncomfortable” working with her for a year and a half. Plaintiff expressed surprise, noting that defendant Peacock had made only positive comments to her about her work performance. Plaintiff told defendant Peacock that she wished to continue working and asked how she could improve their working relationship; defendant Peacock replied that there was nothing that she could do and that she was “not a team player.” Defendant Peacock then asked plaintiff for her resignation effective 30 June 2006. Plaintiff responded that she was “devastated” and concerned that she would not be able to find another comparable job because she was sixty-three years old. “Defendant Peacock explained that this decision had nothing to do with her work performance, which was outstanding.” Plaintiff chose early retirement over resignation and informed defendant Peacock via the following e-mail: I have decided to retire rather than resign from [the university]. Because of the time required to process both the state retirement and social security payments, I am requesting that I be placed on paid administrative leave for three months. It is critical that I have benefits during this time. Defendant Peacock replied by e-mail that he would honor her request for continued benefits and prepare her administrative leave paperwork. Plaintiff maintains that she “was forcibly separated, not voluntarily retired,” from the university and that her termination has caused her to suffer ongoing financial hardship. She also alleged in her complaint that the university purchased the option from Cash for $10,000.00 but did not exercise the option. In her complaint, plaintiff alleged that defendants violated the Whistleblower Act by unlawfully retaliating against her, discriminating against her, and discharging her because she reported defendant Peacock’s inappropriate conduct to Larry and refused to “carry out defendant Peacock’s directive to pay Mr. Cash $10,000,” which she characterized as an “inappropriate use of state funds.” Plaintiff also asserted violations of her rights to equal protection, due process, and freedom of speech under sections 14, 19, and 32 of Article .1 of the North Carolina Constitution. Defendants then moved to dismiss for failure to state a claim. Plaintiff voluntarily dismissed her due process claim pursuant to Rule 41(a)(1). After a hearing, the trial court dismissed the remainder of plaintiff’s claims by written order. Plaintiff now appeals, alleging (1) that her complaint stated valid claims for relief under the Whistleblower Act and the North Carolina Constitution, (2) that defendants are not entitled to sovereign immunity, (3) that the trial court should have permitted plaintiff to amend her complaint under Rule 15(a), (4) that the trial court should have granted plaintiff’s request that the dismissal be entered without prejudice, and (5) that the trial court erred by refusing to make findings of fact and conclusions of law. II. Failure to State a Claim We review the trial court’s dismissal for failure to state á claim by inquiring whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory. Rule 12(b)(6) generally precludes dismissal except in those instances where the face of the complaint discloses some insurmountable bar to recovery. Dismissal is proper, however, when one of the following three conditions is satisfied: (1) the complaint on its face reveals that no law supports the plaintiff’s claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim;.or (3) the complaint discloses some fact that necessarily defeats the plaintiff’s claim. Newberne v. Department of Crime Control & Pub. Safety, 359 N.C. 782, 784-85, 618 S.E.2d 201, 203-04 (2005) (quotations and citations omitted). A. Whistleblower Act Plaintiff first argues that she sufficiently pled all three elements of her Whistleblower Act claim. We disagree. The Whistleblower Act provides, in relevant part: (a) No . . . State employee exercising supervisory authority shall discharge, threaten or otherwise discriminate against a State employee . . . because the State employee . .. reports or is about to report, verbally or in writing, any activity described in G.S. 126-84, unless the State employee knows or has reason to believe that the report is inaccurate. (al) No State employee shall retaliate against another State employee because the employee . . . reports or is about to report, verbally or in writing, any activity described in G.S. 126-84. (b) No . . . State employee exercising supervisory authority shall discharge, threaten or otherwise discriminate against a State employee ... because the State employee has refused to carry out a directive which in fact constitutes a violation of State or federal law, rule or regulation or poses a substantial and specific danger to the public health and safety. (bl) No State employee shall retaliate against another State employee because the employee has refused to carry out a directive which may constitute a violation of State or federal law, rule or regulation, or poses a substantial and specific danger to the public health and safety. N.C. Gen. Stat. § 126-85(a)-(b1) (2007). Section 126-84 states as policy that State employees are encouraged to report “evidence of activity by a State agency or State employee constituting ... [a] violation of State or federal law, rule or regulation[,] . . . [misappropriation of State resources[,] or . . . [g]ross mismanagement, a gross waste of monies, or gross abuse of authority.” N.C. Gen. Stat. § 126-84(a)(1), (3), (5) (2007). Accordingly, to sufficiently state a claim under the Whistleblower Act, a plaintiff must allege the following elements: “(1) that the plaintiff engaged in a protected activity, (2) that the defendant took adverse action against the plaintiff in his or her employment, and (3) that there is a causal connection between the protected activity and the adverse action taken against the plaintiff.” Newberne, 359 N.C. at 788, 618 S.E.2d at 206 (emphases added). Plaintiff has not sufficiently alleged that she was engaged in any “protected activity” within the meaning of the statute. She avers that because there were insufficient funds to exercise the option and that no sufficient funds would become available before the option expired, “the option was essentially worthless” to the university. Plaintiff argues that defendant Peacock’s pursuit of this “worthless option” constituted a misappropriation of state resources, gross mismanagement, gross abuse of authority, and a violation of the exclusive emoluments clause of the North Carolina Constitution. Because the option was not “worthless,” we cannot agree that its pursuit or purchase constituted a protected activity under the Whistleblower Act. An option ... is a contract by which the owner of property agrees with another that he shall have the right to purchase the same at a fixed price within a certain time. It is in legal effect an offer to sell, coupled with an agreement, to hold the offer open for acceptance for the time specified, such agreement being supported by a valuable consideration, or, at common law, being under seal, so that it constitutes a binding and irrevocable contract to sell if the other party shall elect to purchase within the time specified. Kidd v. Early, 289 N.C. 343, 360, 222 S.E.2d 392, 404 (1976) (quotations and citations omitted; alteration in original; emphasis added). This Court has previously explained that “[a]n option to buy or sell land, more than any other form of contract, contemplates a specific performance of its terms; and it is the right to have them specifically enforced that imparts to them their usefulness and value.” Rainbow Props. v. Wilkinson, 147 N.C. App. 520, 523, 556 S.E.2d 11, 13-14 (2001) (quoting Texaco, Inc. v. Creel, 310 N.C. 695, 706, 314 S.E.2d 506, 512 (1984)) (additional citation omitted). In other words, an option to buy or sell land has an inherent, intrinsic value distinct from its purchaser’s ability to exercise it: the purchaser may specifically enforce a sale upon the terms of the option. That the university may or may not have had the funds in the future to exercise the option at the time it was purchased did not affect the option’s value. Likewise, that plaintiff did not anticipate acquiring sufficient funds to exercise the option before its expiration also did not affect the option’s value. Accordingly, we hold that plaintiff’s complaint failed to sufficiently allege that she was engaged in a “protected activity” and, therefore, the trial court properly dismissed her Whistleblower Act action for failure to state a claim. B. Constitutional Claims Plaintiff next argues that she adequately alleged a free speech claim, an equal protection claim, and an exclusive emoluments claim, and that she has no adequate state remedy for these violations. Again, we disagree. The basis for all of these claims is that defendant Peacock’s pursuit of the option constituted some form of misconduct or that the option’s purchase was a sham transaction. Having determined that the option had value and that therefore defendant Peacock’s pursuit of the option did not constitute misconduct, mismanagement, or misappropriation, it is unnecessary to further address plaintiff’s constitutional claims based on that alleged misdeed. Moreover, we note that the Whistleblower Act creates an adequate remedy under state law and thereby precludes any action at common law, including defendant’s constitutional claims. “ [Officials and employees of the State acting in their official capacity are subject to direct causes of action by plaintiffs whose constitutional rights have been violated.” Corum v. University of North Carolina, 330 N.C. 761, 783-84, 413 S.E.2d 276, 290 (1992) (citations omitted). In Swain v. Elfland, we held that the plaintiff’s contested case hearing for wrongful termination under N.C. Gen. Stat. §§ 126-34.1 and 126-86 was an adequate state remedy that precluded a direct cause of action for violation of the plaintiff’s right to free speech under the North Carolina Constitution. 145 N.C. App. 383, 391, 550 S.E.2d 530, 536 (2001). Here, plaintiff’s claim under N.C. Gen. Stat. § 126-86 is an adequate state law remedy for her alleged free speech violation. Similarly, her claim of misappropriation of state funds is expressly covered by N.C. Gen. Stat. § 126-84 and thus is an adequate state law remedy for her exclusive emoluments clause claim. Finally, because her equal protection claim alleges discrimination based on activities protected by the Whistleblower Act, it is also precluded. II. Sovereign Immunity Plaintiff next argues that to the extent that the trial court based dismissal upon the ground of sovereign immunity, the dismissal was in error. The order does not specify the grounds upon which it based its dismissal; it states only that the “matter came on for hearing on August 13, 2007, on Defendants’ Motion to Dismiss pursuant to N.C.R. Civ. P. Rule 12(b)(1), 12(b)(2), and 12(b)(6),” and that “[h]aving considered the complaint,” the trial court granted defendants’ motion and dismissed plaintiff’s complaint with prejudice. Having already determined that the trial court properly dismissed plaintiffs complaint for failure to state a claim under Rule 12(b)(6) of our Rules of Civil Procedure, it is unnecessary to determine whether the trial court had a second valid ground on which to base its dismissal. See Estate of Fennell v. Stephenson, 354 N.C. 327, 334, 554 S.E.2d 629, 633 (2001) (stating that the trial court erred by dismissing the plaintiffs complaint on the ground of sovereign immunity, but nevertheless upholding the dismissal on other grounds). III. Motion to Amend Plaintiff next argues that the trial court erred by denying her “the opportunity to amend her complaint to address any allegations which were omitted.” During the 13 August 2007 motion to dismiss hearing, plaintiffs counsel made the following request to amend the complaint: [I]f for some reason [plaintiffs claims] were going to be dismissed, Plaintiff would ask that we be allowed the opportunity to allege more specific items if the Court felt that is necessary. Plaintiff does not feel that is the case, because she has specifically alleged violations of her rights to free speech, her fundamental rights under the protection clause, as well as her rights of the emoluments provision. After plaintiff learned that the trial court planned to dismiss the complaint, she drafted a written notice to amend in the form of a letter to Judge Powell. The 15 August 2007 letter states, in relevant part: As requested during oral argument on the Motion, plaintiff again asks for the opportunity to amend the complaint under Rule 15(a) prior to entry of dismissal. Plaintiff respectfully requests your grounds for the dismissal so that plaintiff may address the deficiencies in her complaint “without prejudice” and specifying that a new action based on the same claims may be commenced within one year after the dismissal as permitted by Rule 41(b) of the North Carolina Rules of Civil Procedure. Rule 15(a) provides: A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 30 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave sha

Melissa Romero vs. UHS of Westwood Pembroke, Inc., & another. No. 07-P-931. Middlesex. May 5, 2008. - September 8, 2008. Present: Grasso, Trainor, & Wolohojian, JJ. Health Care Facility. Employment, Retaliation, Discrimination, Termination. Anti-Discrimination Law, Sex, Termination of employment. Unlawful Interference. Contract, Interference with contractual relations. In a civil action alleging a violation of G. L. c. 149, § 187, the Massachusetts medical provider whistleblower statute, the judge properly granted summary judgment in favor of the defendant, a health care facility, where the plaintiff failed to demonstrate that she objected to any existing activity, policy, or practice of the defendant; where the record contained no evidence that tire proposal to which the plaintiff objected (which was never adopted) violated any law, rule, regulation, or professional standard of practice; and where the claimed retaliatory conduct occurred before the plaintiff voiced her objection to the proposal. [540-543] In a civil action alleging employment discrimination based on pregnancy, the judge properly granted summary judgment in favor of the defendant employer, where the record did not support the claim that an administrative reorganization was an adverse employment event, and the plaintiff did not produce evidence that she and the person to whom she reported as a result of the reorganization were similarly situated [543-545]; and where, with respect to the plaintiff’s termination as part of a layoff, the plaintiff failed to meet her burden of producing sufficient credible evidence that the employer’s proffered nondiscriminatory reasons for her layoff were merely a pretext [545-548]. In a civil action alleging intentional interference with advantageous business relations, the judge properly granted summary judgment in favor of the defendant, where the plaintiff, as a matter of law, could not satisfy the element of “improper motive or means” required to make out an interference claim. [548] Civil action commenced in the Superior Court Department on September 10, 2003. A motion for partial summary judgment was heard by Julian T. Houston, J., and the remaining counts were also heard by him on a motion for summary judgment. Jeffrey R. Mazer for the plaintiff. Barbara S. Hamelburg (.Laura Bernardo Sorafine with her) for the defendants. Robert Spiegel. Wolohojian, J. The plaintiff, formerly the director of a partial hospitalization program (the Boston Center) of the defendant, UHS of Westwood Pembroke, Inc. (Westwood), appeals from the dismissal on summary judgment of her claims for (1) violation of G. L. c. 149, § 187, the Massachusetts medical provider whistleblower statute; (2) violation of G. L. c. 15IB; and (3) intentional interference with advantageous business relations. The claims were based on an administrative reorganization of staff conducted by Westwood in April, 2002, that resulted in the plaintiff reporting to someone new, and on the plaintiff’s subsequent termination as part of a reduction in force in July, 2002. In broad summary, the plaintiff claimed that both the reorganization and her subsequent termination were unlawful responses to her (a) objecting to proposed patient-to-staff ratio increases; and (b) notifying her employer that she was pregnant. On appeal, we view the record in the light most favorable to the plaintiff, Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991), and “consider the record and the legal principles involved without deference to the motion judge’s reasoning.” Zielinski v. Connecticut Valley Sanitary Waste Disposal, Inc., 70 Mass. App. Ct. 326, 334 (2007). We discuss each claim in turn below. 1. General Laws c. 149, § 187. Section 187 of G. L. c. 149 provides a cause of action to health care providers who are retaliated against for disclosing problems within health care facilities. Section 187(6) prohibits health care facilities from “refus[ing] to hire, terminat[ing] a contractual agreement with or tak[ing] any retaliatory action against a health care provider” for engaging in any of the acts protected under the section. The protected acts include those contained in § 187(6)(3), on which the plaintiff relies: “objecting] to or refusing] to participate in any activity, policy or practice of the health care facility . . . which the health care provider reasonably believes is in violation of a law or rule or regulation promulgated pursuant to law or violation of professional standards of practice which the health care provider reasonably believes poses a risk to public health.” A claim under § 187(¿>)(3) requires the plaintiff to establish that (1) she objected to, or refused to participate in, an activity, policy or practice that (2) she reasonably believed to be in violation of a law, rule, regulation, or professional standard of practice, (3) which she reasonably believed posed a risk to public health, and (4) she was retaliated against as a result. Summary judgment was properly entered on this claim for several reasons, not least of which being that the record does not show that the plaintiff objected to any existing “activity, policy, or practice” at Westwood. Instead, the record reflects that the plaintiff objected to a proposed increase in the patient census which, as a result of objections raised by her and others, was in fact never adopted., General Laws c. 149, § 187, does not extend to mere proposals. Instead, the plain language of the statute refers only to existing activities, policies, and practices of a health care facility that are (the statute itself using the present tense) in violation of a statute, rule, regulation, or professional standard. The policies underlying the statute would be undermined were we to extend it to include objections to proposals, particularly to proposals such as the one at issue in this case, that are never adopted. As reflected in the provision of the statute requiring that a health care facility be given notice of an objection in cases Where the health care provider initially objects to a third party, a significant purpose of the statute is to “afford[] the health care facility a reasonable opportunity to correct the activity, policy or practice.” G. L. c. 149, § 187(c)(1). In those cases, if the health care facility corrects the problem, the objecting health care provider has no claim. Ibid. For the same reason, the plaintiff should have no claim here: she and others objected to the proposed increase in the pediatric patient census and, as a result, the proposal was abandoned. This salutary internal debate among health care professionals regarding how best to handle their medical practice is not the basis for a claim under G. L. c. 149, § 187. Summary judgment was also appropriately entered on this claim because the record contains no evidence that the proposal violated any law, rule, regulation or professional standard of practice. The record contains no evidence of any law, rule, regulation or professional standard governing the patient census or imposing a particular patient-to-staff ratio for a facility such as the Boston Center. In the absence of any such evidence, as a matter of law, the plaintiff could not have had an objectively reasonable belief that the proposed patient census increase was in violation of any statute, rule, regulation or professional standard. See Lynch v. Boston, 180 F.3d 1, 17 (1st Cir. 1999) (construing G. L. c. 149, § 185). The plaintiff’s personal views on the proposed patient census increase, unsupported by reference to any statutory, regulatory or professional standard of practice, were not enough to support her claim. Finally, to the extent that the plaintiff claims that the administrative reorganization that was announced on April 10, 2002, was retaliatory conduct within the meaning of § 187, that argument fails because the reorganization was announced before the plaintiff objected to the proposed patient census increase. The plaintiff has pointed to nothing in the record reflecting any date on which she aired her objection to the proposal apart from May 7, 2002, the date she sent a memorandum voicing her objections. It is logically and legally impossible for the claimed retaliatory conduct to have occurred before the plaintiff voiced her objection. For each of these reasons, summary judgment was appropriately entered in Westwood’s favor on the plaintiff’s claim under G. L. c. 149, § 187. 2. General Laws c. 15IB. In March, 2002, approximately six months after she was hired, the plaintiff informed her supervisor that she was pregnant with an expected delivery date in September. She contends that, as a result of this disclosure, West-wood took the same two adverse employment actions against her upon which she rested her whistleblower claim: i.e., as part of the administrative reorganization, she no longer reported directly to the chief executive officer, Robert Spiegel, and she was terminated as part of a reduction in force. A plaintiff must prove four elements to succeed on a claim under G. L. c. 151B: “membership in a protected class, harm, discriminatory animus, and causation.” Lipchitz v. Raytheon Co., 434 Mass. 493, 502 (2001). There is no dispute in this case as to the first element: the plaintiff was pregnant. As to the second element, there is no dispute that her termination constituted actionable harm, but there is disagreement whether the structural reorganization did. In an indirect evidence case, such as this one, the third and fourth elements may be established using the familiar three-stage, burden-shifting paradigm, which we set out in the margin. a. The April reorganization. It was undisputed that Spiegel, Westwood’s chief executive officer, “began to consider the restructuring of Westwood’s child and adolescent partial hospitalization programs” in late January or early February, 2002 — in other words, before the plaintiff informed him that she was pregnant. Contrary to Westwood’s argument, however, this does not dispose of the plaintiff’s claim, because Spiegel never stated when he decided to go forward with the restructuring or when he decided to have the plaintiff report to a newly-created director of child and adolescent partial hospitalization services. Summary judgment, however, was properly granted because the record did not support a finding that the administrative restructuring was an adverse employment event. The plaintiff concedes that the restructuring did not change her job duties or her pay. She also admits that the restructuring did not “cause any difficulties for [her] in terms of [her] job function,” or in her “employee status.” However, she argues that “the restructuring [created] a redundancy” between her duties and those of her new supervisor, which facilitated her later termination as part of the reduction in force. This argument might have had some appeal had the plaintiff pointed to anything in the record to support her assertion that redundancies were created. Absent any such evidence, the reorganization did nothing more than create a new layer of reporting between the plaintiff and Spiegel. As a result of the reorganization, the plaintiff, instead of reporting directly to Spiegel, reported to Daniel Litwack (who was appointed the director of child and adolescent partial hospitalization services), who in turn reported to Spiegel. Standing alone, this was insufficient to constitute an adverse employment action. See Mac-Cormack v. Boston Edison Co., 423 Mass. 652, 663 (1996) (the fact that “[d]uties were rearranged and new reporting structures devised” did not amount to adverse employment action). Summary judgment was also appropriate because the plaintiff came forward with no evidence to show that Litwack and the plaintiff were similarly situated. The plaintiff provides no comparison of Litwack’s position, duties, pay, and experience with her own, whether in his new position or in his previous position at Westwood. Westwood’s undisputed evidence, on the other hand, was that Litwack had been employed longer at Westwood and had greater previous experience than the plaintiff. In the face of this evidence presented by Westwood, the plaintiff did not meet her burden of presenting evidence sufficient to withstand summary judgment with respect to the reorganization. b. The July layoff. The plaintiff’s claim arising from her termination as part of a layoff in July, 2002, is more complicated. As the motion judge found, the plaintiff satisfied her burden in coming forward with sufficient evidence to establish a prima facie case for purposes of stage one of the burden-shifting paradigm. The motion judge also properly determined that Westwood had amply met its burden of articulating nondiscriminatory reasons for the layoff and of presenting credible evidence that its reasons were the real reasons for laying off the plaintiff. This case, therefore, falls squarely within the analytical framework of Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34 (2005), in which the Supreme Judicial Court reviewed the granting of summary judgment in a case involving a reduction in force. Sullivan turned, as this case does, on whether the plaintiff had come forward with sufficient “credible evidence that [the employer’s] proffered reasons for her layoff were merely a pretext for a true intent of [pregnancy] discrimination.” Id. at 55. “This may be accomplished by showing that the reasons advanced by [Westwood] for making the adverse decision are not true.” Ibid., quoting from Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 117 (2000). Westwood pointed to ample evidence in the summary judgment record that the July, 2002, systemwide layoff was necessitated by financial losses. See note 9, supra. The Boston Center alone had posted pretax losses of more than $96,000 through June, 2002. The plaintiff herself acknowledged her understanding that if the patient census did not improve, staffing at the Boston Center would need to be reduced. The plaintiff does not attack or dispute the evidence of financial losses. Instead, she argues that pretext can be inferred from the facts that (a) Litwack was not terminated; (b) the director of the Lowell program (a nonpregnant woman) was not terminated; and (c) unlike four of the six employees who were terminated (all nonpregnant women), the plaintiff was not offered a comparable position at Westwood after her termination. None of these rebuts Westwood’s “proffered reasons for laying off [the plaintiff] and does not, by itself, create reasonable inferences of discriminatory animus and causation.” Sullivan v. Liberty Mut. Ins. Co., supra at 55. In large part, this is so because the record does not contain the information necessary to permit a reasonable inference of pretext to be drawn in this case. The plaintiff is correct that Litwack was not terminated as a part of the reduction in force. However, in order for a reasonable inference of pretext to be drawn, the plaintiff needed to provide evidence of more than the fact that he was a man; she needed to show that he was similarly situated. As set out above, the plaintiff failed to do so. Moreover, Westwood presented evidence of Litwack’s greater experience, both at Westwood and at previous employers. Similarly, the record contains no evidence that the director of the Lowell program was similarly situated to the plaintiff. West-wood’s uncontroverted evidence was that the Lowell program was not comparable to that of the Boston Center. Specifically, the Lowell program was a large inpatient facility whereas the Boston Center was a “partial” (i.e., outpatient) program only. Again, absent evidence that the director of the Lowell program was similarly situated, no reasonable inference could be drawn simply from the fact that she was neither pregnant nor terminated. Finally, the plaintiff argues that pretext can be inferred from the fact that she was not offered the directorship of the partial program at Pembroke Hospital. She points to the fact that of the six employees laid off as part of the July, 2002, reduction-in-force, four (nonpregnant women) were offered comparable positions within Westwood whereas she was not.* As the motion judge found, however, the plaintiff presented no evidence of an available suitable opening at Westwood. Westwood presented evidence — that was uncontradicted — that the Pembroke Hospital was a separate entity with different management from Westwood. No reasonable inference of discriminatory animus could be drawn from Westwood’s failure to offer a position that was not its to give. For these reasons, summary judgment was properly granted on the plaintiff’s claim under G. L. c. 151B. 3. Intentional interference with advantageous business relations. The plaintiff, an at-will employee, brought this claim against Spiegel, alleging that she had a reasonable expectation of continued employment at Westwood with which he improperly interfered by selecting her to be laid off because she was pregnant. Because her interference claim depends entirely on her discrimination claim, it fails for the reasons set forth in the preceding section. Absent a legally sufficient claim for discrimination, the plaintiff, as a matter of law, cannot satisfy the element of “improper motive or means” required to make out her interference claim, and summary judgment was properly allowed. See Alba v. Sampson, 44 Mass. App. Ct. 311, 314 (1998) (elements of interference claim). For the reasons set out above, summary judgment was properly entered on all claims. Judgments affirmed. The section largely tracks the language of the Massachusetts whistleblower statute, which is not limited to health care providers. See G. L. c. 149, § 185. For purposes of this section, a plaintiff’s belief must be objectively reasonable. See Lynch v. Boston, 180 F.3d 1, 17 (1st Cir. 1999) (construing G. L. c. 149, § 185). The objection must be “a substantial or motivating part” of the adverse employment action. See Taylor v. Freetown, 479 F. Supp. 2d 227, 241 (D. Mass. 2007) (construing G. L. c. 149, § 185). In March, 2002, Robert Spiegel, the chief executive officer of Westwood, directed that the number of pediatric patients at the Boston Center be increased without an increase in staff. The plaintiff points to nothing in the record to indicate that she objected to this proposal before May 7, 2002, when she sent a memorandum that reflected her understanding that a census increase “has been proposed.” The plaintiff did not object to an increase in the pediatric patient census per se; her objection was to an increase in census “without a formal plan in place and/or with realistic patient to staff ratio under agreement.” Although the plaintiff argues in her brief that she objected to other items as well, such as the staffing grid, the record does not support her claim. The portions of the record to which she cites do not show that she informed anyone that she had an objection or complaint to any of those matters. In order to withstand summary judgment, the plaintiff was required, among other things, to put forward sufficient material to demonstrate that she voiced an objection. Lyon v. Morphew, 424 Mass. 828, 831 (1997), quoting from Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991) (“A complete failure of proof concerning an essential element of the non-moving party’s case renders all other facts immaterial”). In stage one, the plaintiff has the burden of establishing a prima facie case of discrimination by showing that (1) she was in a protected class; (2) she performed her job at an acceptable level; (3) she suffered an adverse employment event; and (4) her employer sought to fill her position with an individual with similar qualifications; or, in the case of a reduction in force, her layoff occurred in circumstances that would raise a reasonable inference of unlawful discrimination. See Abramian v. Presid

WEISHUHN v CATHOLIC DIOCESE OF LANSING Docket No. 273117. Submitted April 1, 2008, at Detroit. Decided May 22, 2008, at 9:05 a.m. Madeline Weishuhn brought an action in the Genesee Circuit Court against the Catholic Diocese of Lansing and St. Mary’s Catholic Church, alleging violations of the Whistleblowers’ Protection Act, MCL 15.361 et seq., and the Civil Rights Act, MCL 37.2101 et seq., in connection with the termination of her employment at St. Mary’s, where she had taught mathematics and religion classes and performed other duties. The court, Archie L. Hayman, J., granted the defendants’ motion for summary disposition of the claim asserting violation of the Whistleblowers’ Protection Act and denied the defendants’ motion for summary disposition of the claim alleging retaliatory termination under the Civil Rights Act. The defendants appealed by leave granted from the denial of the motion regarding the claim under the Civil Rights Act. The Court of Appeals held: 1. The ministerial exception, which precludes subject-matter jurisdiction over claims involving the employment relationship between a religious institution and its ministerial employees, exists in Michigan. The ministerial exception has its roots in the Establishment Clause and the Free Exercise of Religion Clause of the First Amendment of the United States Constitution. The exception bars discrimination claims where religious employers employ or have employed plaintiffs with religious positions. Application of the exception is not inherently complex. It requires courts to determine only whether the resolution of a plaintiffs claim would limit a religious institution’s right to choose who will perform particular spiritual functions. The exception does not apply to all employment decisions by religious institutions nor does it apply to all claims by ministers. 2. The trial court erred in holding that the motion under MCR 2.116(C)(4) for summary disposition of the claim under the Civil Rights Act, which asserted that the court lacked subject-matter jurisdiction over the claim because of the application of the ministerial exception, might create a question of fact for the jury. A determination that there is no genuine issue of material fact can play a part in ruling on a motion for summary disposition under MCR 2.116(C)(4) and this may involve an evaluation of the factual elements of the case. However, this evaluation is for the trial court, not the jury, to make. 3. In determining whether the ministerial exception applies, courts must first determine whether the employer is a religious institution and next determine whether the employee is a ministerial employee. There is no question here that St. Mary’s is a religious institution. The order denying the motion for summary disposition of the claim under the Civil Rights Act must be vacated and the matter must be remanded for a determination by the trial court whether the plaintiff was a ministerial employee. The claim must be dismissed if it is determined that the plaintiff was a ministerial employee, and proceedings as necessary for a trial must be scheduled if it is determined that the plaintiff was not a ministerial employee. Vacated and remanded. 1. Constitutional Law — Ministerial Exception — Establishment of Religion — Free Exercise of Religion. Michigan allows the application of the ministerial exception, which precludes subject-matter jurisdiction by a court over claims involving the employment relationship between a religious institution and its ministerial employees where the resolution of the employee’s claim would limit the religious institution’s right to choose who will perform particular spiritual functions; however, the exception does not apply to all employment decisions by religious institutions or all claims by ministers. 2. Motions and Orders — Subject-Matter Jurisdiction — Issues of Material Fact. A determination that there is no genuine issue of material fact may play a part in a trial court’s ruling on a motion for summary disposition that alleges that the court lacks jurisdiction of the subject matter; the determination regarding whether there is a genuine issue of material fact is for the trial court, not the jury, in regard to the motion for summary disposition (MCR 2.116[C][4]). Law Offices of Julie A. Gafkay, PLC (by Julie A. Gafkay and Sandra D. Hanshaw), and Joliat, Tosto, McCormick & Bade, PLC (by Michael T Joliat), for the plaintiff. Foster, Swift, Collins & Smith, EC. (by Thomas R. Meagher and Stephen J. Rhodes), for the defendants. Before: ZAHRA, EJ., and WHITBECK and Beckering, JJ. Per Curiam. Defendants Catholic Diocese of Lansing (the Diocese) and St. Mary’s Catholic Church (St. Mary’s) appeal by leave granted the trial court’s order denying their motion for summary disposition in this Civil Rights Act retaliatory-termination case. We vacate and remand for further proceedings. I. OVERVIEW This case involves the “ministerial exception.” The ministerial exception is a nonstatutory, constitutionally compelled exception to the application of employment-discrimination and civil rights statutes to religious institutions and their “ministerial” employees. The ministerial exception has its roots in the Establishment and Free Exercise of Religion clauses of the First Amendment and generally bars inquiry into a religious institution’s underlying motivation for a contested employment decision. We first conclude that the ministerial exception exists in Michigan. We next conclude that the trial court erred when it concluded that the motion before it— which sought summary disposition of plaintiff Madeline Weishuhn’s retaliatory-termination claim on the ground that the trial court lacked jurisdiction of the subject matter because of the ministerial exception— might create a question for the jury. We therefore remand to the trial court for an analysis of, and conclusions regarding, whether Weishuhn was a “ministerial” employee. We direct the trial court, in undertaking that analysis and reaching those conclusions, to focus on the totality of Weishuhn’s duties and responsibilities, her position, and her function. II. BASIC FACTS AND PROCEDURAL HISTORY A. WEISHUHN’S BACKGROUND In 1992, Weishuhn obtained her Bachelor of Science degree in elementary education from the University of Michigan. For more than 10 years, until 1999, Weishuhn worked for St. Charles and Helena Catholic Church in Clio, Michigan. She was that church’s director of religious education for its “parish religious education] program” for approximately eight years. In 2001, she obtained her master’s degree in teaching from Marygrove College. B. WEISHUHN’S EMPLOYMENT AND DUTIES AT ST. MARY’S In August 1999, Weishuhn began teaching at St. Mary’s Elementary School in Mount Morris, Michigan. Weishuhn taught mathematics for the fifth through the eighth grades and carried out religious responsibilities that included teaching religion for the sixth through the eighth grades. Initially, Weishuhn taught two mathematics classes and four religion classes each day, but she later taught four mathematics classes and three religion classes each day. And in her final year at St. Mary’s (2004-2005), she taught four mathematics classes and two religion classes each day. At her deposition, Weishuhn explained that her religious-education duties entailed teaching sixth-, seventh-, and eighth-grade religion classes. She was also responsible for planning Masses for those grades, as well as assisting a fourth-grade teacher with student liturgies. Weishuhn and the St. Mary’s pastor discussed the subject matter of the Masses. Weishuhn also prepared her seventh- and eighth-grade students for the sacrament of confirmation, and she developed reconciliation (penance) services twice a year. At her deposition, Weishuhn agreed that her responsibilities were ministerial in the sense that she provided religious direction for her students. She also testified that religion was an integral part of the school’s curriculum and her lesson plan. C. THE PROCEEDINGS BELOW After a series of employment-related incidents, none of which involved the subject of religion, St. Mary’s terminated Weishuhn’s employment in the spring of 2005. Weishuhn later filed a two-count complaint against defendants, alleging violations of the Whistle-blowers’ Protection Act and the Civil Rights Act for retaliatory termination. Defendants then moved for summary disposition pursuant to MCR 2.116(0(10), asserting that both of Weishuhn’s claims failed as a matter of law. The trial court granted the motion with respect to the Whistleblowers’ Protection Act claim, but it denied the motion with respect to the retaliation claim under the Civil Rights Act. In June 2006, defendants moved for summary disposition pursuant to MCR 2.116(C)(4), arguing that the trial court lacked subject-matter jurisdiction over Weishuhn’s employment-discrimination claim because of the ministerial exception. Defendants asserted that “[bjecause [Weishuhn’s] duties while employed by St. Mary’s School included a ‘spiritual function,’ the First Amendment of the United States Constitution preeludes application of the Elliott Larsen Civil Rights Act... to [her] employment relationship with St. Mary’s School.” The trial court denied defendants’ motion, ruling that there was a question of fact for the jury in terms of whether Weishuhn’s primary function was spiritual in nature. In reaching its conclusion, the trial court noted that the caselaw cited by the parties used the word “primary.” The trial court also acknowledged that there appeared to be some overlap between Weishuhn’s duties in terms of secular and spiritual teaching, and opined that “this is a case that maybe could create some new law in this area, at least maybe get some clarification as to whether or not there needs to be an analysis by the court with respect to this primary or secondary purpose.” The trial court gave effect to its ruling in a subsequent written order. The trial court also denied defendants’ motion for reconsideration of this matter. Defendants now appeal. III. THE MINISTERIAL EXCEPTION A. STANDARD OF REVIEW This Court reviews de novo a motion for summary disposition pursuant to MCR 2.116(C)(4). “When viewing a motion under MCR 2.116(C)(4), this Court must determine whether the pleadings demonstrate that the defendant was entitled to judgment as a matter of law, or whether the affidavits and other proofs show that there was no genuine issue of material fact.” This Court also reviews constitutional issues de novo on appeal. B. THE CIVIL RIGHTS ACT As noted above, Weishuhn alleged a violation of the Civil Rights Act. One purpose of that act is “to eradicate particular forms of discrimination in the workplace.” The act provides in pertinent part that “a person shall not... [Retaliate or discriminate against a person because the person has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act.” C. THE FIRST AMENDMENT The First Amendment of the United States Constitution provides in pertinent part that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof!.]” The First Amendment applies to the states through the Fourteenth Amendment. “[T]he state and federal provisions of the Establishment Clause and the Free Exercise Clause of the First Amendment of the United States Constitution!] are subject to similar interpretation.” The Establishment Clause guarantees governmental neutrality with respect to religion and guards against excessive governmental entanglement with religion. And the Free Exercise Clause generally prohibits governmental regulation of religious beliefs. D. THE CONTOURS OF THE MINISTERIAL EXCEPTION The ministerial exception has its roots in the First Amendment’s guarantees of religious freedom and, generally, it “bars any inquiry into a religious organization’s underlying motivation for [a] contested employment decision.” More specifically, the ministerial exception “precludes subject matter jurisdiction over claims involving the employment relationship between a religious institution and its ministerial employees[.]” Federal courts have held that the ministerial exception bars employment-discrimination claims under the federal Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and common-law claims. Courts applying the ministerial exception to employment-discrimination claims base such application on a religious “institution’s constitutional right to be free from judicial interference in the selection of... employees.” And one state supreme court has described the ministerial exception as a “nonstatutory, constitutionally compelled” exception to federal civil rights laws. We note that “[w]ith respect to questions of federal law, this Court is not bound by precedent from federal courts except the United States Supreme Court.” “However, where the United States Supreme Court has not resolved an issue, a state court may choose among conflicting lower federal court decisions... to adopt the rule it determines to be most appropriate.” And, in applying the ministerial exception to state civil rights laws, one state appellate court has noted that “there is ... no reason why an exemption carved by the courts from federal civil rights laws should not also apply to their state analogs.” However, the United States Court of Appeals for the Fourth Circuit has cautioned that “[t]he ministerial exception does not insulate wholesale the religious employer from the operation of federal anti-discrimination statutes.” The United States Court of Appeals for the Third Circuit explained that the ministerial exception “requires federal courts to determine only whether the resolution of the plaintiffs claim would limit a church’s right to choose who will perform particular spiritual functions.” The Third Circuit then continued as follows: [W]e agree with the implied findings of our sister circuits that Congress would prefer a tailored exception to Title VII than a complete invalidation of the statute. Finally, our remedy is limited: It does not apply to all employment decisions by religious institutions, nor does it apply to all claims by ministers. It applies only to claims involving a religious institution’s choice as to who will perform spiritual functions.[] Therefore, “[w]hile the ministerial exception promotes the most cherished principles of religious liberty, its contours are not unlimited and its application in a given case requires a fact-specific inquiry.” As the United States Court of Appeals for the Sixth Circuit has succinctly stated, the ministerial exception applies when (1) the employer is a religious institution, and (2) the employee is a ministerial employee. When the employer’s “ ‘mission is marked by clear or obvious religious characteristics,’ ” this satisfies the first prong. Thus, courts have held that “religiously affiliated schools, corporations, and hospitals . . . come within the meaning of a ‘religious institution’ ” for purposes of the ministerial exception. Under the second prong, the scope of the ministerial exception depends on the individual’s position. The Sixth Circuit previously “applied the ministerial exception only to ordained ministers”; however, it later extended the exception to a nonordained plaintiff who fulfilled a pastoral role in a hospital. Therefore, rather than focusing on the fact of ordination, the function of an individual’s employment position has generally been dispositive of the question whether that position was “ministerial.” Accordingly, the ministerial exception applies when “the employee’s primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship ... ,” Under those circumstances, the employee is considered clergy. Indeed, the United States District Court for the District of Connecticut stressed the primacy of the employee’s religious duties and responsibilities: Courts are required to examine the duties and responsibilities of the particular employee and examine whether they are ministerial or secular in nature. It is only when the Court concludes that the employee had primarily religious duties and responsibilities that the employment decision made by the religiously-affiliated institution is barred from review by the Free Exercise Clause.[] In McClure v Salvation Army, the plaintiff commenced an action alleging retaliation by the defendant Salvation Army after the plaintiff initiated a gender-discrimination claim. The United States Court of Appeals for the Fifth Circuit first stated that the Salvation Army was a church and that the plaintiff, as a denominated officer, was one of the Salvation Army’s clergy. The court then concluded that the First Amendment exempted the Salvation Army from federal civil rights laws under the circumstances, because its “ministers” were “the chief instrument by which the church seeks to fulfill its purpose.” Other jurisdictions have consistently applied the ministerial exception in cases where the plaintiffs’ positions were inherently or exclusively religious, as in the case of clergy members and the like. Additionally, courts have applied the ministerial exception to cases where the plaintiffs’ functions were essentially liturgical, that is, related to worship. Yet other courts have also applied the ministerial exception to cases where the plaintiffs’ functions were inextricably intertwined with a religious institution’s doctrine and where the plaintiffs’ positions entailed proselytizing on the defendant church’s behalf. But foreign jurisdictions have not extended the ministerial exception to cases where the plaintiffs’ positions have no connection with the religious institution’s doctrinal mission. E. THE MINISTERIAL EXCEPTION AND THE TEACHING FUNCTIONS (1) CASES APPLYING FIRST AMENDMENT RATIONALE We first note that there are cases in which courts have concluded that the ministerial exception applied to teachers, but then disposed of those cases on a broader First Amendment rationale. For example, in Stately v Indian Community School of Milwaukee, Inc, although the United States District Court for the Eastern District of Wisconsin found that the plaintiff filled a ministerial position, it ultimately concluded that her claim must fail under Establishment Clause grounds because her claim “would result in excessive entanglement both procedurally and substantively.” Similarly, in Curay-Cramer v Ursuline Academy of Wilmington, the United States District Court for the District of Delaware concluded that the ministerial exception applied to the plaintiff, who taught English and religion classes, but ultimately dismissed the plaintiffs case on application of the Free Exercise Clause. And in Powell v Stafford, the United States District Court for the District of Colorado also concluded that the ministerial exception applied to a theology teacher at a Catholic high school but, instead of barring the plaintiffs claim on the basis of the ministerial exception, the court then provided an analysis under the Free Exercise Clause, concluding that “the balance of values does not favor the government’s interference with the [defendant’s] decision as to the appropriate individual to teach its theology” classes. (2) CASES CONSTRUING THE MINISTERIAL EXCEPTION However, there are a number of cases in which the courts have directly applied the ministerial exception to teachers. For example, in Equal Employment Opportunity Comm v Catholic Univ of America, it was clear that the ministerial exception applied to a nun teaching canon law. And the Fourth Circuit has applied the ministerial exception to a director of music ministry and part-time musi

TONDI HOLT, Plaintiff v. ALBEMARLE REGIONAL HEALTH SERVICES BOARD, and JERRY L. PARKS, in his official capacity as Health Director, Defendants No. COA07-262 (Filed 15 January 2008) 1. Public Officers and Employees— retaliatory discharge— whistleblower action — conduct not protected Summary judgment was correctly granted for defendants in a whistleblower action alleging retaliatory discharge where plaintiff was not able to establish that her conduct was protected within the meaning of the Whistleblower Act. Plaintiff alleged protected activity in stating that she would testify truthfully if a dismissed employee brought litigation, but the dispute ultimately was an individual termination action that did not implicate broader matters of public policy. 2. Public Officers and Employees— retaliatory discharge— whistleblower action — legitimate reason for discharge Summary judgment was properly granted in a whistleblower action where defendant offered a legitimate, nonretaliatory reason for plaintiff’s discharge. Plaintiff, who worked for a regional health services board, committed a breach of confidentiality in disclosing patient records, and there was also evidence that termination was appropriate. 3. Public Officers and Employees— retaliatory discharge— whistleblower action — no issue of pretext Summary judgment was properly granted in a whistleblower action for retaliatory discharge where, after defendants established a nonretaliatory reason for the discharge, plaintiff was not able to raise a factual issue of pretext. Appeal by plaintiff from an order entered 20 November 2006 by Judge Clifton W. Everett, Jr. in Pasquotank County Superior Court. Heard in the Court of Appeals 1 November 2007. Homthal, Riley, Ellis & Maland, L.L.R, by John D. Leidy, for plaintiff-appellant. Womble Carlyle Sandridge & Rice, PLLC, by James R. Morgan, Jr. and Mary Nell Craven, for defendant-appellees. HUNTER, Judge. Tondi Holt (“plaintiff”) appeals the trial court’s grant of Albermarle Regional Health Services Board’s (“ARHS”) and Jerry L. Parks’s (“Parks”) (collectively “defendants”) motion for summary judgment. After careful consideration, we affirm. In early 2004, plaintiff was employed as a Finance Officer for ARHS. She was also involved with the personnel department and helped develop and implement agency policies. ARHS is a district health department and a public authority under N.C. Gen: Stat. § 130A-36(a) (2005) and N.C. Gen. Stat. § 159-7(b)(l) (2005). As a state institution, ARHS is barred from terminating an employee for reporting a violation of state policy as defined by N.C. Gen. Stat. § 126-84 (2005). N.C. Gen. Stat. § 126-85 (2005). No employee of a state agency who serves in a supervisory capacity may terminate an employee for reporting a violation of state policy. Id. On 28 January 2004, plaintiff was terminated from her employment with ARHS by Parks. Plaintiff claims her termination is a violation of the above referenced statutes (“the Whistleblower Act”). See N.C. Gen. Stat. § 126-84, et seq. (2005). Defendants, however, argue that plaintiff was in fact terminated for breaching her confidentiality obligations, which defendants characterized as “unacceptable personal conduct[.]” In November 2003, Parks told plaintiff that ARHS would terminate the agency’s safety director, “L,” an employee with thirty years’ service to ARHS. According to plaintiff, Parks informed her that a member of ARHS’s executive board wanted to terminate L because L had not done his job in thirty years. Plaintiff also stated that Parks told her that L had been placed in the position of safety director until he could retire, and it was time to let L go. Plaintiff told Parks that there was no cause to fire L, and she did not want to be part of any termination proceeding against him. During ARHS’s executive board meeting, the discussion of terminating L came up. Plaintiff asked to be excused from the meeting and she was. According to plaintiff, in December 2003, ARHS’s personnel consultant, Sylvia Johnson (“Johnson”), told her that a reduction in work force would be used to terminate L. Plaintiff told Johnson that she thought such action was illegal and wrong, and she did not want to be part of any termination proceedings against L. Plaintiff also stated that she was warned not to meddle with the board’s actions to terminate L, as the board was behind the decision. On 19 December 2003, L met with Parks offsite in order that, according to plaintiff, she would not be involved in the termination. At the meeting, L was terminated. According to plaintiff, Parks informed L that if anyone else became involved with his termination that they were putting their jobs at risk. On 6 January 2004, plaintiff met with Parks and Johnson. According to plaintiff, she told them that if there was litigation between defendants and L, she would testify truthfully and felt that she needed her own legal representation. Johnson, however, testified that plaintiff provided little context as to why the meeting was being held and that she continually sought reassurances that her job would be protected were L to “do something.” According to Johnson, Parks reassured her that her job would be protected. Johnson also said that there was no discussion as to whether plaintiff would be provided with legal representation were L to bring an action because they were unaware as to what L was planning. Plaintiff was ultimately terminated on 22 January 2004. Defendants contend plaintiff was terminated for violating confidentiality requirements imposed by the Health Information Portability and Accountability Act (“HIPAA”) and agency policy. Defendants’ evidence is summarized below. In January 2004, Parks was notified by Dennis Harrington (“Harrington”) of the Department of Health and Human Services (“DHHS”) of suspected violations of state and local law involving plaintiff and Allen Jones (“Jones”). According to Parks, he learned that during December 2003 confidential patient health information had been illegally generated at ARHS at plaintiff’s direction. The reports contained confidential information for Medicaid clinical services provided at another county health department, the Martin Tyrrell Washington District Health Department (“WHD”). According to Parks, the reports indicated that WHD had approximately 1.6 million dollars in Medicaid funds which had gone uncollected. The records were given by plaintiff to Jones and contained plaintiff’s handwritten notes. Jones took the documentation to WHD and told its director, Keith Patton (“Patton”), that he would assist them in collecting the money owed in exchange for twenty-five percent of the funds collected. Jones told Patton that he received the documentation from ARHS and that it had been reviewed and given to him by plaintiff. In January 2004, Patton logged a formal complaint against ARHS. The complaint alleged that ARHS staff had improperly accessed confidential patient information in the WHD. After meeting with state representatives about the incident, Parks understood that plaintiff’s actions violated HIPAA, state, and local privacy laws. After receiving assurances that plaintiff had violated the law from Jill Moore, a specialist with the Institute of Government, Parks scheduled a pre-dismissal conference with plaintiff. At the conference, plaintiff did not deny the allegations against her and conceded that she had written the summaries of the reports and given them to Jones. Defendants then terminated plaintiff. Plaintiff raises the following issues for this Court’s review: (1) whether the evidence establishes that plaintiff’s conduct was protected under the Whistleblower Act; and (2) whether the evidence shows that defendants’ reason for termination was a pretext for firing plaintiff for protected conduct. We review a trial court’s grant of summary judgment de novo. Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004). “Summary judgment is appropriate ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that [a] party is entitled to a judgment as a matter of law.’ ” Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003) (alteration in original) (quoting N.C. Gen. Stat. § 1A-1, Rule 56(c)). “Evidence presented by the parties is viewed in the light most favorable to the non-movant.” Id. I. The North Carolina Whistleblower Act, N.C. Gen. Stat. §§ 126-84 to 88 (2005), requires a plaintiff to prove the following three essential elements by a preponderance of the evidence in order to establish a prima facie case: “(1) that the plaintiff engaged in a protected activity, (2) that the defendant took adverse action against the plaintiff in his or her employment, and (3) that there is a causal connection between the protected activity and the adverse action taken against the plaintiff.” Newberne v. Department of Crime Control & Pub. Safety, 359 N.C. 782, 788, 618 S.E.2d 201, 206 (2005). We first address whether plaintiff, taking the evidence in the light most favorable to her, engaged in protected conduct. To be protected, the whistleblowing activity must constitute a report about “matters affecting general public policy.” Hodge v. N.C. Dep’t of Transp., 175 N.C. App. 110, 117, 622 S.E.2d 702, 707 (2005). The WTiistleblower Act establishes a state policy to encourage its employees to report violations of state or federal law, rules or regulation; fraud; misappropriation of state resources; “[substantial and specific danger to the public health and safety; or [g]ross mismanagement, a gross waste of monies, or gross abuse of authority;” and it further protects State employees from intimidation or harassment when they report on “matters of public concern.” N.C. Gen. Stat. § 126-84 (2003). Employees who report activities under this statute are protected from retaliation under N.C. Gen. Stat. § 126-85 (2003). Id,, at 116, 622 S.E.2d at 706 (alterations in original). In the instant case, plaintiff alleges that her protected activity was announcing that she intended to testify truthfully were L to bring litigation. In Hodge, the “plaintiff’s ‘report’ was [a] lawsuit seeking reinstatement to his former position.” Id. at 117, 622 S.E.2d at 707. This Court held that the lawsuit did not concern matters affecting general public policy because it “related only tangentially at best to a potential violation of the North Carolina Administrative Code.” Id. This Court has therefore declined “to extend the definition of a protected activity to individual employment actions that do not implicate broader matters of public concern.” Id. In so concluding, the Court in Hodge reasoned that “the General Assembly [did not] intend[] N.C. Gen. Stat. § 126-84 to protect a [s]tate employee’s right to institute a civil action concerning employee grievance matters.” Id. Like the plaintiff in Hodge, plaintiff in this case has made only conclusory allegations that L’s termination was the result of “unlawful age discrimination, and a violation of the State Personnel Act.” Nowhere are there specific statements made by plaintiff that L was fired due to his age; instead, plaintiff concedes that L had a history of poor job performance, that plaintiff herself advocated his termination in prior years, and that defendants did not violate their own policy by not offering a new position to L. Ultimately, the dispute between the parties is an individual termination action that does not implicate broader matters of public concern. This Court has applied whistleblower protection to those “who allege retaliation after cooperating in investigations regarding misconduct by their supervisors].]” Id. at 116-17, 622 S.E.2d at 706 (citing Caudill v. Dellinger, 129 N.C. App. 649, 655, 501 S.E.2d 99, 103 (1998) “(employee terminated after cooperating with State Bureau of Investigation regarding misconduct by her supervisor was able to make out a prima facie case under N.C. Gen. Stat. § 126-84)”). Unlike in Caudill, however, plaintiff merely stated that she would testify truthfully and never actually testified or cooperated with any investigating agency regarding the termination of L. Moreover, Caudill held that “[i]t is the public policy of this state that citizens cooperate with law enforcement officials in the investigation of crimes.” Caudill, 129 N.C. App. at 657, 501 S.E.2d at 104. In the instant case, there has been no investigation or substantiated allegations that the termination of L was in violation of any state laws or regulations. Instead, this case is more in line with Hodge: It involves an individual employment action, the termination of L, and there is no evidence that defendants engaged in “[g]ross mismanagement” or a “violation of State or federal law, rule or regulation” that would afford plaintiff protection under the Whistleblower Act. See N.C. Gen. Stat. § 126-84(a) (statement of policy). Instead, plaintiff could have filed a grievance with defendants after her termination. Accordingly, plaintiffs conduct, even construing the evidence in her favor, is insufficient to establish a prima facie case, and plaintiffs assignment of error as to this issue is rejected. As plaintiff is unable to establish that her conduct was protected within the meaning of the Act, we need not address whether the other elements of a prima facie case have been established. However, in the alternative, we also discuss in Section II of this opinion whether defendants presented a legitimate, non-retaliatory reason for terminating plaintiff. II. Once a plaintiff has established a prima facie case, the employer must proffer a legitimate, non-retaliatory reason for firing the plaintiff. Wells v. N.C. Dep’t of Corr., 152 N.C. App. 307, 317, 567 S.E.2d 803, 811 (2002). At that point, “ ‘the burden [of production] shifts to the plaintiff to present evidence, raising a genuine issue of fact, that his [engagement in a protected activity] . . . [was] a substantial causative factor in the adverse employment action, or provide an excuse for not doing so.’ ” Id. (citation omitted) (alterations in original). Thüs, even if we assume that plaintiff has established a prima facie case, we must determine whether defendant offered a legitimate, non-retaliatory reason to terminate plaintiff and whether plaintiff met her burden of production. Our review of the evidence reveals that defendant offered such a reason and plaintiff is unable to raise a genuine issue of material fact that the termination was a pretext for protected activity. This Court has held that where a plaintiff acknowledges that an employer had “legitimate explanations for the actions [plaintiff] alleged were retaliatory^]” summary judgment in favor of the employer is appropriate. Hodge, 175 N.C. App. at 118, 622 S.E.2d at 707. The undisputed evidence shows that plaintiff committed a breach of confidentiality by disclosing patient records to Jones. Jones later attempted to use those records for personal, monetary gain. Plaintiff acknowledged in her deposition that she gave Jones the stack of documents. Moreover, when confronted by Parks regarding the disclosure of confidential patient information, plaintiff did not dispute the allegation and acknowledged that she also gave Jones a handwritten summary of the information. Plaintiff also admitted that she did not generate the information as part of her job. Indeed, she knew that part of her job description was to safeguard such information and that HIPAA made it illegal for her to access the information when it was not necessary for her job duties. She also conceded that it was not part of her job description to be concerned as to what Medicaid funds were owed WHD. In addition to plaintiffs own remarks, defendants have presented evidence that terminating plaintiff due to the breach of confidentiality was appropriate. Harrington, from DHHS, characterized plaintiffs conduct as a gross violation of law such that any disciplinary action short of termination would have been unacceptable. Harrington also said that plaintiffs disclosure violated the ethical duty imposed on county health departments and was “a severe breach of trust between the ARHS and its patients.” Additionally, Curtis Dickson, the Director for Hertford County Public Health Authority, and Johnson, the former Regional Personnel Director for DHHS, both testified that plaintiffs actions were illegal and Johnson advised Parks that plaintiff committed a dismissible offense. Finally, the evidence shows that the breach of confidentiality was brought to Parks’s attention by Patton, a third party with no knowledge of L’s termination. This is not a case where defendants were creating a false paper trail in order to justify their termination of plaintiff on pretextual grounds. We find additional support for our decision in Shoaf v. Kimberly-Clark Corp., 294 F. Supp. 2d 746 (M.D.N.C. 2003). In that case, the plaintiff filed an employment discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Id. at 749. The plaintiff admitted to disclosing information in violation of his confidentiality agreement with the defendant. Id. at 752. The Shoaf Court then granted summary judgment because the evidence presented showed that defendant “focused only upon Plaintiffs breach of his duties of confidentiality and loyalty owed to Defendant as a basis for their decision to discharge Plaintiff.” Id. at 758 (footnote omitted). The same circumstances being presented here, we thus conclude that defendants have established a legitimate non-retaliatory reason for their adverse employment decision. Accordingly, the burden now shifts to plaintiff to establish that her engagement in protected activity was a substantial causative factor of her termination. In order to raise a factual issue regarding pretext, “the plaintiff’s evidence must go beyond that which was necessary to make a prima facie showing by pointing to specific, non-speculative facts which discredit the defendant’s non-retaliatory motive.” Wells, 152 N.C. App. at 317, 567 S.E.2d at 811. Plaintiff has failed to carry this burden. In the instant case, the only direct evidence presented by plaintiff that defendants terminated her employment in retaliation for her opposition to L’s release was a statement to L by Parks not to discuss his termination with anyone as it could cost them their jobs. That comment, however, was taken out of context. During L’s and Parks’s meeting together, L had requested a copy of his personnel file. At that point, Parks instructed L to go through appropriate channels for any information he needed because accessing such information through employees that did not have authorization to such information could cost them their jobs. L corroborates this during his deposition when he stated, in relation to the conversation he had with Parks, that: “I know it was in reference to some personnel issues and that I should keep those things in confidence, and that it could possibly cause other people problems.” This evidence fails to discredit defendants’ legitimate, non-retaliatory reason to terminate plaintiff. Plaintiff argues that there was a close temporal proximity between her protected activity and her firing. This circumstantial evidence, plaintiff argues, is sufficient to prove retaliatory termination. In support of this proposition, plaintiff cites this Court’s opinion in Caudill. In that case, the plaintiff was terminated “almost immediately” upon the defendant learning that the plaintiff was cooperating with the State Bureau of Investigation. Caudill, 129 N.C. App. at 655, 501 S.E.2d at 103. In this case, plaintiff was terminated ten weeks after her initial complaint and fourteen days after her last complaint regarding L’s termination. More importantly, the plaintiff in Caudill forecasted evidence that she

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).