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SJC Upholds Whistleblower Claim By Employee Who Participated In Wrongful Conduct

In a recent decision, Galvin v. Roxbury Community College, the Massachusetts Supreme Judicial Court (“SJC”) held that a public employee may be protected from retaliation under the Massachusetts Whistleblower Act, G.L. 149, § 184 (“MWA”), even where the employee participated in the underlying misconduct.

The case stands for the proposition that an employer cannot defeat a whistleblower claim simply by arguing that the plaintiff was also at fault in the underlying unlawful activity. In this way, the SJC’s decision reinforces the fundamental purposes of the MWA and similar whistleblower laws – to encourage reporting of violations of law, protect employees who report unlawful activities from retaliation, and ensure that illegal or unsafe activities are revealed and corrected.

Factual Background

Roxbury Community College employed Thomas Galvin as its Director of Facilities and Public Safety. In this role, Galvin acted as the College’s chief compliance officer for purposes of the federal Clery Act. The Clery Act requires colleges and universities that receive federal funding to report to the Department of Education (“DOE”) statistics on certain “reported” crimes, including sex crimes. Under the Clery Act, a crime is “reportable” when it is brought to the attention of the college or university – which is not necessarily the calendar year in which the crime took place.

In August 2010, the College’s Director of Human Resources, Preston Paul Alexander, received complaints from a student that she had been sexually assaulted by two professors, in 2003 and 2004, respectively. On September 1, 2010, Alexander advised Galvin that there were no reported crimes on record for the prior year.

Subsequently, on November 30, 2010, Galvin received copies of the student’s two complaints and emailed the College’s Vice President of Administration and Finance, Dr. Alane Shanks, asking whether the complaints had been previously reported pursuant to the Clery Act. Shanks advised Galvin that there was nothing to report but that Galvin should report the assaults if he believed he was required to do so. That same day, the College granted the student a scholarship and sent the student a bill with a zero balance.

On July 13, 2011, Galvin disclosed the student’s complaints to the State Auditor’s Office and further advised that the student had been granted a scholarship. In September 2011, Galvin disclosed these same facts to an outside auditor whom the College had retained to investigate Galvin’s report.

Soon after the report to the auditor, Galvin submitted the College’s annual Clery Act report but did not disclose the student’s reports of assault. On May 29, 2012, the outside auditor issued a report, stating that the College had failed to report the student’s claims.

Several weeks later, Galvin received a performance evaluation, which stated that he had “failed to comply with critical public safety requirements.” On August 13, 2012, the College terminated Galvin’s employment, based, in part, on the findings of the outside auditor.

Procedural History

In October 2012, Galvin brought suit against the College, alleging that his employment had been terminated in violation of the MWA – specifically, for reporting to the State Auditor the College’s violations of the Clery Act.

The case eventually proceeded to trial, and the court instructed the jury that Galvin had engaged in protected activity in reporting the College’s Clery Act violations. The issue for the jury, therefore, was whether Galvin’s conduct was a determinative cause for his termination. The jury found in Galvin’s favor and awarded Galvin $980,000 in damages, from which the College appealed.

Appeal

In its decision, the SJC highlighted the necessary elements of a whistleblower claim under the MWA – i.e., that (1) the employee engaged in activity protected under the statute, (2) the protected activity was the cause of an adverse employment action against the employee, and (3) the retaliatory action caused the employee damages.

With respect to the first element, the Court noted that protected activity includes “objecting to or refusing to participate in any activity, policy or practice which the employee reasonably believes is in violation of the law … .” The SJC further noted that whether an employee holds such a reasonable belief is measured by an objective standard. Applying this standard, the Court held that Galvin had an objectively reasonable basis for his report, given that the Clery Act violations had “undisputedly” occurred.

In opposition to this point, the College argued that Galvin’s objections to the Clery Act violations were not reasonable because Galvin himself was uncertain whether the assaults should be reported and indeed, did not report the student’s allegations to the DOE.

The SJC was not convinced. First, the Court noted that the MWA does not require certainty that a violation of law has occurred. Second, the Court noted that the wording of the statute does not preclude whistleblower complaints by employees who engaged in the wrongdoing at issue.

The SJC observed that excluding from whistleblower protection employees who report unlawful activity in which they are implicated would discourage reporting. As the Court noted, a whistleblower’s involvement in the underlying reportable activity is not uncommon. Indeed, that is how whistleblowers often learn of reportable conduct. Instead, the SJC concluded, the employee’s involvement in the illegal activity is better addressed as part of the causation analysis – i.e., whether the cause of the adverse employment action was the whistleblowing or the employee’s own misconduct.

Takeaways For Employers

The Galvin case affirms that employees are protected by the MWA when objecting to illegal activity, even if they are themselves involved in the underlying misconduct.

The SJC’s decision also clarifies that whether an employee engaged in protected activity, and whether that activity was the determinative cause of termination or another adverse employment action, are distinct legal inquiries, with the latter often remaining a question of fact for the jury.

Further, while the Galvin case was decided under the MWA, which primarily protects public employees, its underlying rationale appears to extend to whistleblower claims in the private sector as well.

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Schwartz Hannum’s experienced employment attorneys can assist your organization in responding to whistleblower complaints and minimizing employment litigation risks. Please feel free to reach out to us if we can help with these issues.