Tryon v. Mass. Bay Transp. Auth.

• Citation: 159 N.E.3d 177,98 Mass.App.Ct. 673
• Decision Date: 26 October 2020
• Docket Number: No. 19-P-111,19-P-111
• Parties: Thomas TRYON v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.
• Court: Appeals Court of Massachusetts

98 Mass.App.Ct. 673

159 N.E.3d 177

Thomas TRYON

v.MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.

No. 19-P-111

Appeals Court of Massachusetts, Suffolk..

Argued October 11, 2019

Decided October 26, 2020

Kevin P. Martin (Christina S. Bitter also present), Boston, for the defendant.

Robert S. Mantell (Kevin G. Powers also present), Boston, for the plaintiff.

Present: Milkey, Sullivan, & Ditkoff, JJ.

SULLIVAN, J.

The Massachusetts Bay Transportation Authority (MBTA) appeals from a judgment entered on a jury verdict awarding former MBTA employee Thomas Tryon $277,919 in lost wages and pension benefits, trebled by the trial judge in a subsequent order, and $22,081 in emotional distress damages for Tryon's claims arising under the Massachusetts Whistleblower Act, G. L. c. 149, § 185. The MBTA contends that (1) it is entitled to judgment as a matter of law because Tryon's complaint was untimely filed; (2) an erroneous jury instruction regarding the discovery rule warrants a new trial; and (3) the evidence was insufficient to support the treble damage award. We affirm.

Background. For purposes of evaluating the MBTA's contentions regarding timeliness and punitive damages, we summarize the facts as the jury could have found them, viewed in the light most favorable to Tryon. Cf. Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 110 n.2, 731 N.E.2d 1075 (2000). Thomas Tryon began working for the MBTA as a laborer in the maintenance of way division in 1984. He received a series of promotions through the positions of trackperson, foreperson, and general foreperson, before becoming a superintendent of maintenance of way in August 2001. In that role he was responsible for maintenance of the Red, Blue, Green, and Orange Lines.

On August 18, 2001, after a routine visit to the work site of a maintenance of way crew (crew) on the Green Line, Tryon alerted his supervisor that members of the crew were not present at the times they were scheduled to work overtime. Following investigation, the crew members were docked between thirty minutes and three hours of pay. The crew included trackperson Patrick Kineavy.

The following month, in September 2001, Kineavy and the crew filed a complaint against Tryon with the MBTA's department of organizational diversity, alleging that Tryon spied on them and that he had engaged in "harassment and retaliation."¹ Kineavy and the crew followed up on their complaint several times by letter and telephoned the investigator weekly. When the MBTA found no merit in the complaint, Kineavy contacted MBTA General Manager Mike Mulhern in August 2002 to complain about Tryon and the manner in which the crew's complaint had been handled.

For the next several years, Tryon and Kineavy had little direct contact; there were several intervening levels of supervision between Tryon and Kineavy. In 2004, Tryon made a lateral move from superintendent of maintenance of way for the Red, Blue, Green, and Orange Lines to become superintendent of maintenance of way for training.

In 2008, the MBTA promoted Kineavy directly from trackperson to superintendent of maintenance of way for the Green Line, despite his opposition in 2001 to Tryon's efforts to curb overtime abuse, and despite the fact that he had no supervisory experience in his years at the MBTA. Kineavy skipped over the intermediate positions of foreperson, general foreperson, section foreperson, and supervisor.

In September 2010, Stephen Trychon was promoted from deputy director of systemwide maintenance and improvements to director of engineering and maintenance, where he oversaw several departments, including the maintenance of way division in which Tryon and Kineavy were superintendents.

At that time, Trychon had worked for the MBTA for less than two years, and had no experience in the maintenance of way division. He relied on Kineavy in his roles as superintendent of maintenance of way and later as deputy director of maintenance of way to determine staffing in the maintenance of way division.

On September 20, 2010, at the suggestion of Kineavy (who was Tryon's peer, not Tryon's supervisor), Trychon notified Tryon that he would be reassigned from his day shift training position to a night position with the same title he then held, superintendent of maintenance of way. Tryon testified that Kineavy asked Trychon to reassign Tryon to an undesirable night shift in order to compel Tryon to retire.² The night superintendent position was not posted, and Tryon was not interviewed for it.

At some point, it is unclear exactly when, Kineavy (unbeknownst to Tryon) also told Trychon that Tryon "sucked," that he was lazy, that he slept on the job, and that Kineavy did not want him in the maintenance of way division. Tryon was unaware of Kineavy's role, and attributed his transfer to Trychon. Tryon began looking for other jobs both within the MBTA and outside of it.

In November 2010, Kineavy was promoted to deputy director of maintenance of way. As deputy director of maintenance of way, Kineavy became Tryon's immediate supervisor. Tryon characterized their relationship at this point as "strained." Kineavy told Tryon to engage in covert observations of his crews to see if their time records were accurate. Tryon found the request ironic, in view of Kineavy's protests in 2001, and declined to do so, because he thought that deliberate surveillance of this sort would damage the working relationship with his employees.

In an e-mail dated December 10, 2010, Tryon quoted a former boss as saying, "[w]hen the horse is dead it's time to dismount." At trial he testified that he sent this e-mail both because he thought he had fallen out of favor with Trychon, and because he thought that having Kineavy as a supervisor would not be good for him.

On December 16, 2010, the MBTA posted Kineavy's former position of superintendent of maintenance of way for the Green Line internally, with a closing date of December 31, 2010. Although superintendent positions carrying the same pay had been filled in the past without posting (as was the case with Tryon's reassignment to the night shift), this position was posted.

Even though Kineavy made the recommendation to eliminate Tryon's position "fairly quickly upon his promotion" to deputy director of maintenance of way in November 2010, Tryon was not informed until after the posting for the superintendent position had closed. Trychon notified Tryon on January 6, 2011, that "a decision was made to eliminate the night superintendent position." Under normal MBTA practice, Kineavy, as Tryon's immediate supervisor, not Trychon, should have informed Tryon that his position would be eliminated. This deviation from usual practice occurred at Kineavy's request. Kineavy told Trychon that it would be difficult for Kineavy to terminate Tryon because he had known Tryon for years.

According to Tryon, when he asked whether he could apply for Kineavy's old job, Trychon responded that there were already two "young, aggressive" applicants who were being considered for the job and "that he would not interview or consider [Tryon] for the position." Trychon informed Tryon that the facilities division might have a position open, and both Trychon and Tryon contacted the facilities division in January 2011 to inquire whether it had a position for Tryon. Tryon sent his resume to the facilities division, which informed Tryon that there was no position available. Tryon also searched internal job postings within the MBTA to no avail.

On January 31, 2011, without an equivalent position, Tryon retired. On November 1, 2011, Tryon filed a complaint with the Massachusetts Commission Against Discrimination (MCAD), alleging age discrimination on the basis of Trychon's statement that he was considering "young, aggressive" applicants, and the subsequent hiring of a younger, less experienced applicant.

On June 11, 2013, Tryon and Trychon met with attorney Kevin Powers, who at the time represented both of them in separate actions against the MBTA.³ Trychon told Tryon that he had not lost his position because of his age. Trychon told Tryon that Kineavy had told Trychon that Tryon was a bad worker, had asked Trychon to move Tryon to nights, had asked Trychon to eliminate Tryon's job, and had asked Trychon to inform Tryon that his job would be eliminated.

On February 14, 2014, Tryon withdrew his MCAD complaint, and on August 20, 2014, he filed this whistleblower case in Superior Court. After a nine-day trial, the jury found for Tryon. Answering special questions, the jury answered "No" to the question whether Tryon knew or reasonably should have known prior to August 21, 2012, that he had been harmed by allegedly retaliatory action by the MBTA.

The jury also answered an advisory question regarding treble damages, finding that the MBTA acted with evil motive or reckless indifference to Tryon's rights. The judge then independently considered the question of treble damages. In a thoughtful and comprehensive twenty-one page decision, he found that Kineavy was not credible and was motivated by evil intent. He also found that the MBTA acted with reckless disregard for the rights of Tryon by promoting an unqualified and malicious Kineavy to supervisor and failing to take steps to supervise him. The judge awarded treble damages against the MBTA. This appeal followed.

Discussion. 1. Discovery rule. The Massachusetts Whistleblower Act provides, among other things, protection against retaliation for public employees who disclose to a supervisor activity that the employee reasonably believes is a violation of the law. G. L. c. 149, § 185 (b ). See Cristo v. Worcester County Sheriff's Office, 98 Mass. App. Ct. 372, 376, 156 N.E.3d 225 (2020). On appeal the MBTA does not directly contest the jury's verdict on liability.⁴ The MBTA instead contends that its motions for directed verdict and for judgment notwithstanding the verdict should have been allowed because Tryon's action was untimely.

In reviewing a ruling on a...