Whistleblower Act: Allegations of Retaliation Fail Where the Conduct for Which the Retaliation is Alleged Was Committed by Co-Workers, Not Employer

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The Whistle Blower Act, Mass. General Laws Ch. 149 § 185(b), provides that a public employer may not retaliate against a public employee who has (1) "blown the whistle" or, in other words, disclosed an activity, policy or practice of the employer that the employee believes is a violation of a law, rule, or regulation and a risk to public health, safety or the environment; (2) provided information to a public body conducting an investigation into such activity; or (3) objected to or refused to participate in such activity. Retaliation under the Act includes any adverse employment action, such as demoting, suspending or firing the employee who makes the disclosure or objects to the activity.

It is important to note that the activity that led to the disclosure to which the retaliation is related must have been committed by the employer, as opposed to by other employees. This issue arose in a case recently before the Superior Court. In Tyron v. MBTA, a former MBTA superintendant sued the MBTA pursuant to §185(b)(1) of the Whistle Blower Act. He alleged his position had been eliminated and/or he was not hired for another position for which he had applied because he had reported overtime abuse by certain employees he supervised a decade earlier. The plaintiff made the underlying report in 2001; at that time, he "blew the whistle" on certain employees under his supervision whom he alleged had submitted false timesheets. One of the employees who had been the subject of that complaint was later promoted to a position with supervisory authority over the whistle-blowing plaintiff. In 2011, that supervising employee eliminated the plaintiff's position and refused to hire the plaintiff for another position for which he had applied, hiring instead an arguably less qualified candidate. The plaintiff sued the MBTA, claiming that the elimination of his position and the refusal to hire him for the other position were adverse employment actions that were motivated by his disclosure a decade earlier.

The Court concluded that the plaintiff could not make out a claim against the MBTA for a violation of §185(b)(1) because the conduct the plaintiff disclosed was conduct by MBTA employees, rather than the plaintiff's employer, the MBTA itself. The statute defines "employer" as "the commonwealth, and its agencies or political subdivisions, including, but not limited to, cities, towns, counties and regional school districts, or any authority, commission, board or instrumentality thereof." Since the conduct about which the plaintiff blew the whistle was conduct of colleagues, as opposed to the MBTA itself, the plaintiff had failed to state a claim under §185(b)(1) of the Massachusetts Whistleblower Act.

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