The Massachusetts Supreme Judicial Court recently provided key insight to how the Massachusetts Whistleblower Act (“MWA”) functions when a public employee reports a violation of law as part of their job and is fired as a result.
In Galvin v. Roxbury Community College, the plaintiff-employee alleged that the defendant college fired him in retaliation for being a whistleblower with respect to the college’s reporting duties under the Clery Act. That federal law requires colleges and universities that receive federal financial aid to, among other things, collect and disclose statistics for certain “reported” crimes – including sex offenses — to the U.S. Department of Education. Clery Act disclosures must be disclosed for the calendar year in which the crimes are reported – not the calendar year in which the crimes are alleged to have been committed.
In August 2010, the defendant college’s director of human resources and affirmative action received two complaints from a student alleging that she had been sexually assaulted by two college professors in 2003 or 2004. The college did not disclose in its 2010 Clery Act report that these crimes had been reported. The Plaintiff discovered the unreported complaints. In July 2011, the Plaintiff met with staff from the State Auditor’s office and told them about the allegations. The Plaintiff was terminated from his employment and alleged MWA retaliation.
This case went to trial. At trial, the jury was instructed—correctly, as it turned out—that the plaintiff had engaged in protected activity when he reported the Clery Act violations that had indeed occurred. The jury then found that his termination was retaliatory under the MWA. The college appealed.
The SJC held that the record undisputedly established that the Plaintiff had an objectively reasonable basis for his objections because Clery Act violations had undisputedly occurred. Perhaps more critically, the SJC held that the fact that employee’s job implicated Clery Act reporting did not make his conduct unprotected by the MWA.
“[E]xcluding employees reporting undisputedly unlawful activity from whistleblower protection when they are implicated in the employer’s wrongdoing would discourage the revelation of such wrongdoing, which is one of the purposes of the MWA,” the Court stated. “Indeed, whistleblowers’ exposure to, if not involvement with, the illegal or unsafe activity at issue is not at all uncommon — that is how they often learn about the illegal or unsafe activity.”
This is a key holding because employer’s counsel often argue that certain activity is not protected by law when that reporting is part of the employee’s job.
Responding to the college’s argument that Galvin’s objection had to be made in good faith, the SJC clarified that the law protects even erroneous objections to wrongdoing, but only if they are made with an objectively reasonable and good faith belief that the objected-to activity is illegal. However, where the objection is not erroneous but accurate, there is no need to probe further into the motivations or good faith of the employee’s belief to satisfy the first element of the whistleblower claim.
Please stay tuned for updates on this and other important issues impacting employees.
