Trychon v. Massachusetts Bay Transportation Authority , 90 Mass. App. Ct. 250 ( 2016 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
15-P-1316 Appeals Court
STEPHEN TRYCHON vs. MASSACHUSETTS BAY TRANSPORATION AUTHORITY.
No. 15-P-1316.
Suffolk. May 16, 2016. - September 15, 2016.
Present: Agnes, Massing, & Kinder, JJ.
Massachusetts Bay Transportation Authority. Practice, Civil,
Motion to dismiss. Employment, Termination, Retaliation.
Civil action commenced in the Superior Court Department on
February 11, 2014.
A motion to dismiss was heard by Heidi E. Brieger, J.
Kevin G. Powers for the plaintiff.
Jeffrey A. Dretler for the defendant.
AGNES, J. In this appeal, we must determine the legal
sufficiency of Stephen Trychon's complaint charging the
Massachusetts Bay Transportation Authority (MBTA) with
violations of G. L. c. 149, § 185, the Massachusetts public
employee whistleblower statute (whistleblower statute). A
Superior Court judge allowed the MBTA's motion, pursuant to
Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), to dismiss the
2
complaint. 1 We conclude that Trychon has stated a plausible
claim for relief. See Iannacchino v. Ford Motor Co., 451 Mass.
623, 636 (2008). Accordingly, we reverse the judgment.
1. Standard of review. We review the order dismissing the
complaint de novo, accepting the truth of all factual
allegations and drawing all reasonable inferences in Trychon's
favor. See Glovsky v. Roche Bros. Supermarkets, Inc., 469 Mass.
752, 754 (2014). A complaint is sufficient to withstand a
motion to dismiss if the factual allegations "plausibly suggest"
an entitlement to relief, raising the right to relief "above the
speculative level." Harrington v. Costello, 467 Mass. 720, 724
(2014), quoting from Iannacchino, supra. See Mass.R.Civ.P.
8(a)(1), 365 Mass. 749 (1974). The factual content is
sufficient if it "allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged," Garayalde-Rijos v. Municipality of Carolina, 747 F.3d
15, 23 (1st Cir. 2014), quoting from Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009), and "it . . . raise[s] a reasonable expectation
that discovery will reveal evidence [of the alleged
misconduct]." Lopez v. Commonwealth, 463 Mass. 696, 712 (2012),
quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007).
1
In that motion, the MBTA also requested attorney's fees,
which the judge did not allow.
3
In conducting the "context-specific" inquiry required by
the plausibility standard, we must "draw on [our] judicial
experience and common sense." Lopez, supra, quoting
from Ashcroft, supra at 679. "The critical question is whether
the claim, viewed holistically, is made plausible by 'the
cumulative effect of the factual allegations' contained in the
complaint." A.G. v. Elsevier, Inc., 732 F.3d 77, 82 (1st Cir.
2013), quoting from Ocasio–Hernández v. Fortuño–Burset, 640 F.3d
1, 14 (1st Cir. 2011).
2. Background. We recite the allegations of Trychon's
complaint, along with reasonable inferences that may be drawn
from those allegations. Although merely allegations, we must
accept them as true for the purposes of reviewing the dismissal
of a complaint. See Harrington, supra.
Trychon's employment. The holder of a master's degree in
business administration, Trychon worked in various management
positions for the MBTA from his date of hire on March 30, 2009,
until April 10, 2013. 2 During that time period, he was promoted
2
Hired as a program manager, Trychon was promoted first to
the position of deputy director of the division of system-wide
maintenance and improvement (SMI) and from there to the position
of director of SMI. As the director of SMI, he oversaw three
departments: communications, signals, and maintenance of ways
(MOW). His subordinates included MOW director Patrick Kineavy
and deputy director Matthew McGuire. As the MBTA acknowledges,
SMI is also commonly known as engineering and maintenance (E &
M). For purposes of this decision, we refer, as the complaint
does, to SMI and E & M interchangeably.
4
twice and received excellent performance reviews. His job
duties and responsibilities grew over time.
Trychon alleges that he made it his mission to eliminate
the causes of the MBTA's $180 million debt. For example,
Trychon brought in consultants to review the MBTA's station
cleaning program, working with them on creating new, more cost-
effective contract specifications. As a result of his efforts,
Trychon asserts that he saved taxpayers $18 million over a five-
year period. According to Trychon, with the exception of his
direct superior, Michael Turcotte, 3 MBTA management was not
interested in changing the "culture of waste and inefficiency."
Contract fraud investigation. Assigned by Turcotte on or
about February 10, 2011, to investigate possible contract fraud,
Trychon alleges he uncovered two improprieties at the MBTA: the
illegal extensions of expired contracts and the practice of
dividing large contracts and purchases into smaller ones to
avoid the necessity of management approval. Trychon reported
his findings to Turcotte and to Jonathan Davis, the then acting
general manager of the MBTA (GM) and former head of the
procurement department. An official fraud investigation
revealed that the root cause of the fraud was the procurement
department. As a result of the investigation, at least one
3
Turcotte, who held the position of director of SMI when
Trychon was hired, was subsequently promoted to the position of
assistant general manager of the MBTA.
5
employee was fired. Informed by the investigating accountant
that the evidence of fraud in the procurement department "ran
very deep" and that many more employees would be implicated if
the investigation continued, Davis stopped the investigation.
Eyewear policy. In or about May, 2011, Trychon noticed a
significant number of eye injuries sustained by MBTA employees.
As a result of an investigation, Trychon drafted and implemented
a new eyewear policy that required all E & M employees
performing potentially hazardous duties to wear protective
equipment. After Trychon and Turcotte discovered general
disregard of that policy by E & M employees during a department-
wide safety audit, a directive was issued requiring all E & M
managers to conduct daily safety inspections and to file daily
reports.
On or about January 25, 2012, an employee who reported to
Patrick Kineavy, the director of MOW, was disciplined for
refusing to put on the required eyewear as instructed by
Trychon. When Trychon observed continuing noncompliance with
the policy among Kineavy's group, Kineavy received a written
warning, was placed on a thirty-day corrective action plan, and
was required to document and report his safety-compliance
inspections. When asked to produce proof of his safety-
compliance inspections, Kineavy was unable to do so, and later
6
provided Trychon with twelve allegedly fabricated safety
observations.
In or about April, 2012, Trychon wrote a memorandum to
Turcotte recommending that Kineavy be removed from his director
duties. Acting GM Davis and MBTA human resources director
William Perez 4 rejected that recommendation independently
submitted to them by Turcotte. Kineavy's safety-compliance
reporting duties were switched from Trychon to Turcotte.
In August, 2012, Turcotte sought in writing Kineavy's
termination based upon Kineavy's verbal threat, 5 failure to
enforce the eyewear policy, fraudulent reporting, and continued
poor performance reviews. State Secretary of Transportation
Richard Davey and acting GM Davis stepped in and created a new
job for Kineavy with minimal responsibilities and better pay.
They also switched Kineavy's reporting duties to Sean McCarthy,
"an old South Boston buddy of [Kineavy]." 6
4
The complaint also refers to Perez as the "AGM of H.R."
and as the "Mass DOT Director of Human Resources."
5
During a telephone call in which Kineavy became loud,
threatening, and abusive, Kineavy stated to Turcotte, "I am
going to fix you once and for all -- and for good." By
electronic mail, Turcotte notified senior management, including
Davis and Perez, and State Secretary of Transportation Richard
Davey of Kineavy's "outrageous behavior and threats," expressing
his desire that Kineavy be terminated. No action was taken.
6
The complaint alleges that Kineavy's brother, Michael
Kineavy, enjoyed political influence at the municipal and State
level based on his former employment in a high policy-making
7
Suspected time fraud. The complaint further alleges that
"[i]t was reported" to Trychon and Turcotte that "very close
friends" of Kineavy and Matthew McGuire, the deputy director of
MOW, did not punch in for work by hand scanner as required by
MBTA policy, but were still being paid. Trychon determined that
a supervisor in SMI "was taping or was allowing his name to be
taped" on time sheets without properly verifying that the
employees had actually reported for work. Trychon decided to
conduct a full investigation of E & M to determine the extent of
the practice. News of the investigation leaked, and the
original records of Kineavy and McGuire were stolen.
Unsafe track conditions. Trychon claims that, pursuant to
State regulation, the MBTA is required to "update and create new
track standards every two (2) years." 7 In or about August, 2012,
Trychon discovered that the last updates were made in 2008.
Trychon directed Kineavy and McGuire to bring the MBTA into
regulatory compliance as soon as possible. To that end, Trychon
approved the hiring of a highly-regarded, independent track
inspector, HNTB. The report issued by HNTB warned the MBTA of
alarming safety conditions needing correction that dated back to
position with the city of Boston and his role in a successful
gubernatorial campaign.
7
The MBTA correctly points out that the regulations cited
in the complaint, "[220] CMR 151.11 (track inspection) and [220]
CMR 151.12 (track maintenance)," did not and do not impose that
duty.
8
HNTB's previous inspection in 2006. Neither Kineavy nor McGuire
had addressed the unsafe track conditions since 2006. McGuire
steered the report to himself and did not disclose it to
Trychon.
A concerned member of McGuire's staff provided copies of
the HNTB report to Trychon, who in turn passed copies on to
Turcotte and to his subordinates, directors Joseph McNall and
Andrew Baker. 8 Asked by Turcotte why he had hidden the results
of the report, McGuire allegedly became enraged and accused
Turcotte and Trychon of "having an agenda" against him and
Kineavy. When Turcotte requested that Perez "relieve [McGuire]
of his duties," Perez stated that he would transfer McGuire to
the MBTA's safety department. McGuire informed his boss, Baker,
that "[b]ig changes are coming, and he (McGuire) is not going
anywhere." Baker reported the comment to Trychon and to
Turcotte.
Adverse employment actions. The complaint also alleges
that following Turcotte's "functional[] demot[ion]," on March 1,
2013, by the new GM, Beverly Scott, Turcotte resigned. On April
9, 2013, Trychon received an unsigned card that stated, "'Good
luck.' 'Enjoy your layoff!' and 'Fuck off.'" On the following
day, Perez informed Trychon that he was laid off. At the time,
8
As explained by the MBTA, at the time, McNall was the
director of the signal department, while Baker was the director
of MOW.
9
Trychon had not yet completed his investigation of the suspected
time fraud.
3. Discussion. In general, G. L. c. 149, § 185, protects
public employees from retaliation by their employers for
disclosing to a supervisor or public body workplace activities,
policies, or practices that the employee reasonably believes
violate the law, or pose a risk to public health, safety, or the
environment. 9 There is little decisional law by our appellate
courts construing § 185's provisions. In contrast, the Federal
courts have had the opportunity to construe and apply § 185 on a
number of occasions. While we are required to make our own
judgment about the intent of the Legislature in adopting the
9
General Laws c. 149, § 185(b), inserted by St. 1993,
c. 471, states, in relevant part:
"An employer shall not take any retaliatory action
against an employee because the employee does any of the
following:
"(1) Discloses, or threatens to disclose to a
supervisor . . . an activity, policy or practice of the
employer . . . that the employee reasonably believes is in
violation of a law, or a rule or regulation promulgated
pursuant to law, or which the employee reasonably believes
poses a risk to public health, safety or the environment;
[or]
. . . .
"(3) Objects to[] . . . any activity, policy or
practice which the employee reasonably believes is in
violation of a law, or a rule or regulation promulgated
pursuant to law, or which the employee reasonably believes
poses a risk to public health, safety or the environment."
10
statute, and are not bound by interpretations reached by Federal
courts, we regard those decisions as persuasive authority and,
in this case, find them to be instructive. See Fidler v. E. M.
Parker Co., 394 Mass. 534, 545 (1985).
There are three elements to a whistleblower claim brought
under G. L. c. 149, § 185. The plaintiff-employee must prove
that (1) the employee engaged in a protected activity; (2)
participation in that activity played a substantial or
motivating part in the retaliatory action; and (3) damages
resulted. 10 See Welch v. Ciampa, 542 F.3d 927, 943 (1st Cir.
2008); Taylor v. Freetown, 479 F. Supp. 2d 227, 241 (D. Mass.
2007). The plausibility standard, as clarified by the United
States Court of Appeals for the First Circuit, does not require
the pleading of specific facts to establish each element of the
prima facie case. 11 See Rodriguez-Reyes v. Molina-Rodriguez, 711
10
In analyzing § 185 claims, the United States Court of
Appeals for the First Circuit applies the causation standard
utilized in retaliation and discrimination cases brought under
42 U.S.C. § 1983. See Mt. Healthy City Sch. Dist. Bd. of Educ.
v. Doyle, 429 U.S. 274, 286-287 (1977); Pierce v. Cotuit Fire
Dist., 741 F.3d 295, 301-302, 303 (1st Cir. 2014). See also
Harris v. Trustees of State Colleges, 405 Mass. 515, 522-523
(1989). Here, the motion judge applied the determinative cause
standard. See Lipchitz v. Raytheon Co., 434 Mass. 493, 504-506
(2001). Where the issue is not raised, we have no occasion to
address the conflict in this appeal.
11
For a statement of the prima facie case of a claim under
a related whistleblower statute specific to the health care
industry, G. L. c. 149, § 187(b)(3), see Romero v. UHS of
11
F.3d 49, 54 (1st Cir. 2013) (noting that "prima facie [case] is
an evidentiary standard, not a pleading standard"). The prima
facie elements, however, are relevant "background against which
a plausibility determination should be made." Ibid.
a. Protected activity. Only certain acts are protected by
§ 185, including, as relevant in this case, disclosures (or
threatened disclosures) to a supervisor of and objections to an
employer's activity, policy, or practice that the employee
reasonably believes violates the law or poses a risk for public
health or safety. See G. L. c. 149, § 185(b)(1), (3). We
construe the allegations of the complaint as resting on both
statutory subsections.
Trychon has alleged sufficient facts to plausibly show that
he engaged in one or more activities protected by § 185. First,
following his investigation into alleged contract fraud, he
reported two practices (the extension of expired contracts and
the splitting of contracts) that he reasonably could have
believed violated the public bidding law. 12 See G. L. c. 149,
Westwood Pembroke, Inc., 72 Mass. App. Ct. 539, 540-541 & n.4
(2008).
12
Even assuming without deciding that the particularity
requirement for "averments of fraud," Mass.R.Civ.P. 9(b), 365
Mass. 751 (1974), applies in the context of a statutory
whistleblower claim, the complaint contains sufficient
allegations to avoid a motion to dismiss. See Friedman v.
Jablonski, 371 Mass. 482, 488-489 (1976). The complaint
provided the MBTA with the date of Trychon's discovery of
12
§ 44J(1), (3). Compare Romero v. UHS of Westwood Pembroke,
Inc., 72 Mass. App. Ct. 539, 541 & n.3 (2008).
Second, even if he was mistaken about the track inspection
and maintenance laws, Trychon reasonably could have believed,
based on HNTB's 2012 report and on common sense, that the MBTA's
failure to correct the alarming track conditions for six years
posed a risk to the public safety within the meaning of § 185.
His disclosures to Turcotte of the updated HNTB report, the
nonfeasance by Kineavy and McGuire, and the alleged cover-up by
McGuire qualified as protected activity for purposes of pleading
his § 185 claim.
We agree with the MBTA that the phrase "a risk to public
health, safety or the environment," as it appears in § 185,
means a risk to public health, public safety, or the
environment. However, drawing on our judicial experience and
common sense, we are not persuaded by the MBTA's further
argument that Trychon's disclosures to his supervisors about the
high incidence of eye injuries among employees, and the failure
of certain managers to enforce the MBTA's policy designed to
contract improprieties, the two types of fraudulent practices
involved, and the actions flowing from the investigation
(termination of employee, commencement of formal investigation,
and cover-up of more fraud by acting GM Davis). Combined, those
allegations gave the MBTA enough notice of the claim to allow it
to prepare a defense. More detailed factual allegations were
not required at that early stage of the litigation. See Bell
Atl. Corp., 550 U.S. at 555-556; Ashcroft, 556 U.S. at 678.
13
reduce the number of such injuries is not, as a matter of law, a
disclosure relating to the public health or public safety. 13
Disclosures relating to workplace activities, policies, or
practices that have a significant impact upon the cost of public
employment, including healthcare costs, may diminish the
availability of limited public funds for other pressing public
needs, including public needs relating to health and safety, and
therefore may be protected under the whistleblower statute. The
MBTA is dependent upon public funding from the Commonwealth and
its cities and towns to sustain its operations. See, e.g., St.
2015, c. 46, § 2E (line items 1595-6368 and 1595-6369 of the
general appropriations law for fiscal year 2016, transferring
public funds to accounts earmarked to support the operation of
13
The decision in Oulton vs. Brigham & Women's Hosp., Inc.,
U.S. Dist. Ct., No. 12-10440-GAO, at 3-4 (D. Mass. March 29,
2013), is not to the contrary. There, the court dismissed an
employee's whistleblower claim under G. L. c. 149, § 187(b), on
grounds that the statute in question was designed to safeguard
hospital employees who make disclosures relating to patient care
but not disclosures relating to the health of hospital
employees. Also, our decision in Service v. Newburyport Hous.
Authy., 63 Mass. App. Ct. 278 (2005), where an employee's
disclosure concerning abusive language in the workplace that was
contrary to a personnel policy was deemed outside the protection
of § 185, is distinguishable. Id. at 279, 283-284. In view of
what has been said, it is unnecessary for us to consider whether
the phrase "public health, safety, or the environment," as
appearing in § 185, represents an even broader legislative
intent to safeguard disclosures that affect the health and
safety of workers in the private sector where the resulting
expenditure of public funds may be more attenuated, or not
involved at all.
14
the MBTA). 14 One operational cost of the MBTA is the payment of
benefits to employees injured on the job because the MBTA is a
self-insurer. See McCarthy's Case, 66 Mass. App. Ct. 541, 541,
545-546 (2006). To the extent that the MBTA uses taxpayer
dollars to compensate its injured employees, it diminishes the
availability of those funds to be used for other purposes
relating to public health and public safety. At this early
stage of the proceedings, we cannot say, as a matter of law,
that Trychon has not stated a plausible claim for relief with
regard to the MBTA's eye injury policy.
On the other hand, the allegations relating to the
suspected time fraud were too vague to support an inference that
Trychon qualified for protected whistleblower status. An
unnamed third party reported the violation of the hand scanner
policy to Trychon and to Turcotte. Trychon, it was alleged,
took two actions: he determined that a particular supervisor in
SMI was not verifying employee time and he commenced an "E&M-
wide" investigation.
While a reasonable inference of fraudulent time reporting
involving Kineavy and McGuire could be drawn, these sparse facts
14
See also G. L. c. 161A, § 8, added by St. 1999, c. 127,
§ 51 (financial contribution to MBTA by Commonwealth); G. L.
c. 161A, § 9, as amended by St. 2008, c. 182, § 62 (financial
contribution to MBA from cities and towns). A review of the
Commonwealth's annual and supplemental appropriation laws
indicates regular transfers of public funds to support the
operation of the MBTA.
15
do not support an inference that before his layoff, Trychon
engaged in any protected activity as to the suspected time
fraud. No disclosure of, or threat to disclose, suspected time
fraud to a supervisor may reasonably be inferred from these
facts. See Estock v. Westfield, 806 F. Supp. 2d 294, 309 (D.
Mass. 2011) ("The [whistleblower] statute prohibits retaliatory
conduct on the part of an employer, not preventative conduct").
Although Trychon's allegations concerning his conduct with
respect to the suspected time fraud do not amount to protected
activity, his other allegations of whistleblowing at this stage
of the litigation are sufficient to withstand dismissal for
failure to state a claim.
b. Causation. We conclude that Trychon's complaint,
viewed as a whole, sufficiently alleged a causal connection
between the protected activities and a retaliatory layoff to
satisfy the plausibility standard. 15
At the time of his discharge, Trychon's trajectory was on
the rise. He had evidently proven himself to be an effective
and dedicated public employee, saving taxpayers millions of
dollars, identifying fraudulent contracts, and exposing alarming
track conditions that posed a risk to public safety. He had
15
Trychon alleged that "[he] was laid off because of his
actions, protected by the [whistleblower statute], to wit, he
uncovered and reported fraud, reported safety violations to his
supervisors and opposed corruption and political favoritism."
16
been promoted twice, and the scope of his job responsibilities
was expanding. Generally, unless adverse conditions require a
different course of action, employers who follow sound business
practice do not select employees with excellent performance
records for termination. Likewise, employers who follow sound
business practice do not ordinarily transfer, shield, or reward
employees whose poor performance or wrongful acts warrant
termination, as the MBTA allegedly did according to the
complaint.
Trychon alleged adequate facts plausibly suggesting
retaliatory animus harbored by MBTA management. The narrative
of the complaint suggests a continuing pattern of opposition and
hostility to Trychon, and to his mainstay Turcotte, over an
extended period of time. Trychon claims that Kineavy and
McGuire disregarded his directives, left fraudulent reports in
his mailbox, hid HNTB's alarming inspection report, and stole
original records to thwart his time fraud investigation.
Kineavy allegedly threatened to "fix" Turcotte "for good," while
McGuire accused Trychon and Turcotte of having a personal agenda
against him and Kineavy.
The retaliatory animus supposedly extended to the upper
echelons of management. One could reasonably infer that acting
GM Davis did not appreciate Trychon's embarrassing disclosure of
wrongdoing in a department that he personally had overseen, and
17
that he wanted Trychon and his spotlight gone. After having
shelved the investigation to avoid the implication of more
employees in the contract fraud, Davis evidently supported the
insubordinate and hostile Kineavy over Trychon and Turcotte.
Indeed, it could be inferred that Davis, supported by Secretary
Davey, rewarded Kineavy with an objectively better job for his
opposition. The complaint alleges that the consequence of
McGuire's six years of nonfeasance as to track safety and his
nondisclosure of the disturbing HNTB report was a planned
transfer to the safety department. 16 The treatment afforded to
Kineavy and to McGuire plausibly suggested that they had
influence far higher than their subordinate positions in the
organizational chart. 17
In short, for pleading purposes, the hostile acts and
statements by Kineavy and McGuire, the unnatural protection
afforded those individuals, and acting GM Davis's suppression of
the official contract fraud investigation initiated because of
Trychon permit a plausible inference that Trychon's protected
activities played a substantial or motivating part in the
decision to terminate him. Given the continuing pattern of
16
While McGuire's prediction about the imminent arrival of
"[b]ig changes" proved accurate, it is unclear whether he was
able to stop his own transfer.
17
We agree with the MBTA and the judge that the animus
displayed by the author of the anonymous note could not
reasonably be attributed to an MBTA decision-maker.
18
opposition faced by Trychon, the temporal gap between Trychon's
protected conduct and his termination was not so attenuated as
to fail to meet the plausibility standard.
Trychon did not identify the individual who made the final
decision to discharge him. Where, as here, it could reasonably
be inferred that Davis and managers under his protection
influenced that decision, the omission did not warrant the
dismissal of the complaint. 18 See Mole v. University of Mass.,
442 Mass. 582, 598-600 (2004).
In the alternative, the MBTA urges us to affirm the
judgment based on the "normal job duties" exclusion. That
doctrine limits employer liability where the employee's
disclosure to a supervisor occurred as part of the employee's
required job duties. We decline the MBTA's invitation to reach
this novel issue of law, which was raised for the first time on
18
The timeline plausibly suggested the involvement of
adverse management in the layoff decision. It could reasonably
be inferred that in making employment decisions, Scott, the new
GM who replaced Davis, relied on the input of her predecessor.
Approximately one month after Scott functionally demoted
Turcotte, the only other manager that supported culture change,
Trychon himself was terminated. At the time, Trychon was in the
middle of a promising time fraud investigation involving Kineavy
and McGuire. Those facts, taken as true for purposes of the
complaint, were sufficient to send the case to the discovery
phase. See Lopez, 463 Mass. at 711-712.
19
appeal. 19 See Moronta v. Nationstar Mort., LLC, 88 Mass. App.
Ct. 621, 626 n.12 (2015).
4. Conclusion. For the above reasons, the allegations set
forth in Trychon's complaint, along with the reasonable
inferences that may be drawn from them in Trychon's favor, which
at this stage we must assume to be true, were sufficient to
withstand the defendant's motion to dismiss. Accordingly, the
judgment dismissing the complaint is reversed, and the case is
remanded to the Superior Court for further proceedings
consistent with this opinion.
So ordered.
19
The First Circuit recently stated that there is not a
general job duties exception to statutory whistleblower
protection under Maine's Whistleblower Act. See Harrison v.
Granite Bay Care, Inc., 811 F.3d 36, 47-52 (1st Cir. 2016)
(public employee's conduct is protected even if disclosure is
within her job duties so long as she is motivated by intent to
bring wrongdoing to light).