Summary
holding that plaintiff failed to state a claim under § 185(b) because he blew the whistle on fellow employees, not employer
Summary of this case from Jakuttis v. Town of DracutOpinion
SUCV2014-02654
08-17-2016
Thomas Tyron v. Massachusetts Bay Transportation Authority No. 134749
MEMORANDUM OF DECISION AND ORDER ON MASSACHUSETTS BAY TRANSPORTATION AUTHORITY'S MOTION TO DISMISS
Paul D. Wilson, Justice of the Superior Court.
The plaintiff, Thomas Tyron, sues the defendant, Massachusetts Bay Transportation Authority (the " MBTA"), alleging that the MBTA has violated G.L.c. 149, § 185 (the " Whistle Blower Act"). The MBTA now moves for dismissal under Mass.R.Civ.P. 12(b)(6), arguing that (1) the applicable statute of limitation has expired, and (2) the plaintiff has failed to set forth factual allegations sufficient to state a claim under the Whistle Blower Act.
Having reviewed the parties' briefs and heard oral argument on the matter, I DENY the MBTA's motion to dismiss.
BACKGROUND
The facts as taken from the complaint, and accepted as true for purposes of this motion, are as follows.
In 2001, the plaintiff held a superintendent position at the MBTA. In August 2001, the plaintiff discovered that several members of the work crew he supervised, including Patrick Kineavy, were submitting timesheets falsely indicating that they had worked overtime when they had not. The plaintiff investigated the matter further and determined that the crewmembers should not be paid for the claimed overtime. The plaintiff brought the results of his investigation to the attention of his supervisor.
In September 2001, the crewmembers filed a complaint with the MBTA's Office of Diversity and Civil Rights, alleging that the plaintiff had harassed them by excessively supervising them and not paying them the claimed overtime. In June 2002, Kineavy sent the Office of Diversity and Civil Rights a follow-up letter complaining that the office had not investigated his complaint. Kineavy also sent a copy of this letter to the plaintiff.
Both Kineavy and the plaintiff continued to work at the MBTA. Eventually Kineavy was promoted to a supervisory position.
On or about January 6, 2011, the plaintiff was informed that his position might be eliminated. Around the same time, Director Stephen Tychron (" Director Tychron") informed the plaintiff that there was an open position for a superintendent of the Green Line. Although the plaintiff expressed interest in the position, it was given to a younger employee with allegedly less education, less experience, and a less impressive record of accomplishments. On or about January 31, 2011, the plaintiff was informed that his position was going to be eliminated and that his final day of work would be February 2, 2011. The plaintiff responded by tendering his retirement notice.
Based on the belief that he was not selected for the Green Line superintendent position because of his age, the plaintiff filed an age discrimination complaint with the Massachusetts Commission Against Discrimination. The complaint was lodged against Director Trychon. In June 2013, Director Tychron informed the plaintiff that the decisions to eliminate the plaintiff's position and to hire someone else for the Green Line superintendent position were not his; Kineavy in fact made those decisions.
The plaintiff alleges that Kineavy eliminated the plaintiff's position and refused to hire the plaintiff as a Green Line superintendent in retaliation for the plaintiff's actions in 2001. The plaintiff argues that he blew the whistle on Kineavy in 2001 and suffered an adverse employment action in 2011, and, as a result, he has a claim under the Whistle Blower Act. The MBTA has moved to dismiss the plaintiff's claim on the grounds that (1) the applicable statute of limitation has expired, and (2) the plaintiff has failed to set forth factual allegations sufficient to state a claim under the Whistle Blower Act.
DISCUSSION
When evaluating the sufficiency of a complaint under the motion to dismiss standard of Mass.R.Civ.P. 12(b)(6), the court must accept as true the factual allegations of the complaint and all reasonable inferences drawn from those allegations that are favorable to the plaintiff. Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407, 649 N.E.2d 1102 (1995). The complaint must contain " allegations plausibly suggesting (not merely consistent with) an entitlement to relief . . ." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, 888 N.E.2d 879 (2008), quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 555-57, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). While the complaint need not set forth detailed factual allegations, a plaintiff is required to present more than mere labels and conclusions and must raise a right to relief " above the speculative level." Id.
A. Statute of Limitations
The MBTA argues that because the plaintiff filed this lawsuit 19 months after the expiration of the two-year statute of limitations set out in the Whistle Blower Act, G.L.c. 149, § 185(d), the plaintiff's claim must be dismissed as untimely. The plaintiff contends that the so-called " discovery rule" prevents his claim from being barred. The discovery rule provides that " a cause of action accrues when the plaintiff discovers or with reasonable diligence should have discovered that (1) he has suffered harm; (2) his harm was caused by the conduct of another; and (3) the defendant is the person who caused that harm." Harrington v. Costello, 467 Mass. 720, 727, 7 N.E.3d 449 (2014).
Here, the plaintiff alleges that in January 2011 he was under the impression that Director Tychron eliminated his position and hired someone less experienced for the Green Line superintendent position. The plaintiff further alleges that it was not until June 11, 2013 that the plaintiff learned that those were actually Kineavy's decisions. He filed this lawsuit within two years of that date.
The applicability of the discovery rule under these circumstances is not clear. At the motion to dismiss stage, the plaintiff need only allege facts plausibly suggesting applicability of the discovery rule. The parties disagree as to whether the plaintiff reasonably should have known that Kineavy was responsible for the adverse employment action the plaintiff suffered. This is not a determination I can make at the motion to dismiss stage. The question of whether the plaintiff's claim is barred by the statute of limitations must await either a motion for summary judgment or trial.
B. Failure to State a Claim under the Whistle Blower Act
The Whistle Blower Act protects public employees from retaliatory action by public employers in instances where an employee has " blown the whistle" within the meaning of the statute. Retaliatory action is defined as the " discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment." G.L.c. 149, § 185(a)(5). The plaintiff has alleged such retaliatory action, in the MBTA's elimination of his position and its failure to appoint him to the Green Line superintendent position.
However, the Whistle Blower Act provides public employee whistle-blowers with only limited statutory protection. The statute delineates three unique circumstances where an employee's whistle-blowing conduct is protected. See G.L.c. 149, § § 185(b)(1)-(3). The plaintiff's complaint refers to G.L.c. 149, § 185 generally, but it became clear at oral argument that the plaintiff believes his conduct fits within either G.L.c. 149, § 185(b)(1) or G.L.c. 149, § 185(b)(3).
Under G.L.c. 149, § 185(b)(1), an employee is protected from employer retaliation if he disclosed or threatened to disclose an activity, policy, or practice of the employer that the employee reasonably believed was in violation of law or posed a risk to public health, safety or the environment. Similarly, under G.L.c. 149, § 185(b)(3), an employee is protected from employer retaliation if he objected to or refused to participate in an activity, policy, or practice that the employee reasonably believed was in violation of law or posed a risk to public health, safety or the environment. While the plaintiff has stated a plausible, albeit unique, claim under G.L.c. 149, § 185(b)(3), he has failed to allege facts that would support a claim under G.L.c. 149, § 185(b)(1).
The plaintiff's claim under section (b)(1) fails because section (b)(1) clearly requires that the employee disclose or threaten to disclose an activity, act, or practice of the employer . The statute defines an " 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." G.L.c. 149, § 185. The plaintiff makes no allegation that the fraud of his crewmembers was in any way related to a policy or practice of their shared employer, the MBTA. Therefore, when the plaintiff blew the whistle, he was not doing so on his employer; he was doing so on fellow MBTA employees. For this reason, the plaintiff has failed to state a claim under G.L.c. 149, § 185(b)(1).
On the other hand, the plaintiff has alleged facts supporting a plausible claim under section (b)(3). When the plaintiff refused to pay his crewmembers overtime and reported the crewmembers to his supervisor, believing that the claimed overtime was fraudulent, he was arguably refusing to participate in an activity he reasonably believed to be in violation of law. Unlike section (b)(1), section (b)(3) does not require that the activity an affected employee refused to participate in be an activity carried on by " the employer." It is an open question whether blowing the whistle on fellow employees qualifies for protection under the Whistle Blower Act. Having found no precedent to the contrary, I determine that the plaintiff has stated facts that plausibly entitle him to relief under G.L.c. 149, § 185(b)(3).
ORDER
For the reasons set out above, the MBTA's motion to dismiss is DENIED.