Trychon v. Mass. Bay Transp. Auth.

• Decision Date: 15 September 2016
• Docket Number: No. 15–P–1316.,15–P–1316.
• Citation: Trychon v. Mass. Bay Transp. Auth., 90 Mass.App.Ct. 250, 59 N.E.3d 404 (Mass. App. 2016)
• Parties: Stephen TRYCHON v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.
• Court: Appeals Court of Massachusetts

90 Mass.App.Ct. 250

59 N.E.3d 404

Stephen TRYCHON

v.MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.

No. 15–P–1316.

Appeals Court of Massachusetts, Suffolk.

Argued May 16, 2016.

Decided Sept. 15, 2016.

Kevin G. Powers, Boston, for the plaintiff.

Jeffrey A. Dretler, Boston, for the defendant.

Present: AGNES, MASSING, & KINDER, JJ.

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 complaint.¹We conclude that Trychon has stated a plausible claim for relief.SeeIannacchino v. Ford Motor Co.,451 Mass. 623, 636, 888 N.E.2d 879(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.SeeGlovsky v. Roche Bros. Supermarkets, Inc.,469 Mass. 752, 754, 17 N.E.3d 1026(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, 7 N.E.3d 449(2014), quoting fromIannacchino, supra.SeeMass.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 fromAshcroft v. Iqbal,556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868(2009), and “it ... raise[s] a reasonable expectation that discovery will reveal evidence [of the alleged misconduct].”Lopez v. Commonwealth,463 Mass. 696, 712, 978 N.E.2d 67(2012), quoting fromBell Atl. Corp. v. Twombly,550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929(2007).

In conducting the “context-specific” inquiry required by the plausibility standard, we must “draw on [our] judicial experience and common sense.”Lopez, supra,quoting fromAshcroft, supra at 679, 129 S.Ct. 1937.“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 fromOcasio–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.SeeHarrington, 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, 2013.²During that time period, he was promoted 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 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 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 Perez⁴ 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 TransportationRichard 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

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.”⁷In 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 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.⁸Asked 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, 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.⁹There 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 statute, and are not bound by interpretations reached by Federal courts, we regard those decisions as persuasive authority and, in this case,...