Massachusetts High Court Expands Whistleblower Protections for Employees Involved in Employer Misconduct

Overview

If an employee is responsible either in whole or in part for illegal conduct, can the employee be protected by the Massachusetts whistleblower act (WMA)?  In a recent opinion, the Massachusetts Supreme Judicial Court clarified that the answer is yes.  

Key Facts

• The Employee: Thomas Galvin served as Director of Facilities and Public Safety at Roxbury Community College from 2007 to 2012. In this role, he was the primary campus security authority and chief compliance officer for the federal Clery Act (the law that aims to provide transparency around campus crime data and statistics). 
• The Underlying Violations: A student alleged that she had been sexually assaulted by two college professors in 2003 or 2004.  In August 2010, the student reported to Human Resources that she had reported the assaults to various college officials between 2003 and 2009. The college repeatedly failed to disclose these reports to the U.S. Department of Education as required by the Clery Act.
• Galvin’s Reporting: In November 2010, Galvin received copies of the student’s complaint. In 2011, he told the State Auditor’s office about the student’s allegations, and he told the college’s chair of the Board of Trustees among other things that “[the college] has failed to report a campus crime referencing … a former student. This alleged sexual assault is required reporting under the Cleary Act.” Despite these disclosures, Galvin did not include the student’s claims in the 2011 Cleary Act report he submitted to the Department of Education. The college hired an audit firm to investigate, who ultimately concluded that the college did not report the students claims in 2008 and 2010, when it was reported to various college officials. 
• Galvin’s Termination: The college fired Galvin in August 2012, citing performance deficiencies including his own failures to ensure Clery Act compliance. The termination letter also referenced the findings in the audit firm’s investigation report.

The Court Proceedings

Galvin filed suit under the MWA, claiming that he was terminated in retaliation for being a whistleblower with respect to the college’s reporting duties under the MWA.  Ruling on cross motions for summary judgment, the trial court found that Galvin was a whistleblower and allowed the case to proceed to trial on the issue of causation.  After a trial, the jury found that Gavin proved his termination was caused by his whistleblowing activities, not his performance issues, and it awarded Galvin $980,000.

On appeal, the Supreme Judicial Court affirmed, and clarified the following key points:

• Objectively Reasonable Belief Standard: In order to pursue a claim under the MWA, an employee must object to an activity that they reasonably believes is a violation of the law.  When the activity is undisputedly unlawful, this satisfies the “reasonable belief” requirement as a matter of law—no further inquiry into the employees’ subjective state of mind is needed. Thus, because Galvin reported an undisputed Cleary Act violation, he met the first element of his claim.
• Employee’s Own Involvement Is Not a Bar: An employee’s own participation in or responsibility for the unlawful conduct does not preclude whistleblower protection under the first element. To the contrary, the Court held that the MWA’s language protecting objections to “any activity” the employee reasonably believes violates the law is broad, and excluding such conduct from protection could discourage the revelation of wrongdoing. According to the Court, the law is designed to encourage reporting and those closest to violations are often best positioned to expose them. 
• Causation Remains a Jury Question: The Court’s holding on element one of the MWA does not mean an employee’s misconduct cannot be considered by jury. Rather, “the employee’s own involvement in the illegal activity is instead addressed in the causation analysis in the in the second element of the whistleblower claim, that is, whether the cause of the termination was the whistleblowing or the employee’s own misconduct.” Here, the jury considered the employee’s role in the illegality along with the other reasons brough forth by the college to support the termination and ultimately agreed with Galvin and found that his termination was caused by the whistleblowing.

Practical Implications for Employers

• Complicit Employees May Still Be Whistleblowers: Employers cannot avoid whistleblower liability simply by arguing that the reporting employee was part of the problem. 
• Documentation Is Critical: If an employer terminates an employee who has made protected complaints, the employer must be prepared to prove that the termination was caused by legitimate performance issues and not retaliation. As always, employers should maintain clear, contemporaneous documentation of performance concerns.
• Timing Matters: In this case, Glavin was terminated almost one year after he engaged in the last protected activity, and his poor performance review was several months prior.   Where whistleblowing and performance problems coincide, employers face heightened scrutiny and employes must consider such temporal connections when addressing discipline following alleged protected activity.