SJC Affirms Whistleblower Protection for Employees Involved in the Wrongdoing They Report

Background

Under the Jeanne Clery Campus Safety Act, colleges and universities that receive federal financial aid are required to collect and disclose statistics for certain “reported” crimes, including sex offenses. In Galvin, the plaintiff employee, Thomas Galvin, served as the defendant college’s primary campus security authority and chief compliance officer for the Clery Act. As such, Galvin was responsible for making Clery Act disclosures.

In November 2010, Galvin learned of two complaints from a student, who alleged that she had been sexually assaulted by two college professors. Despite this knowledge, he failed to report the complaints at the direction of other college employees. In July 2011, Galvin reported his concerns and objections about the college’s failure to make Clery Act disclosures to Massachusetts’s Office of the State Auditor, which then notified the chair of the college’s board of trustees. In October 2011, Galvin submitted the college’s 2011 Clery Act report without including the two 2010 complaints. In July 2012, the college issued a negative performance evaluation of Galvin, based on his failure to comply with critical regulatory requirements, and in August 2012, the college terminated his employment.

Galvin subsequently filed a lawsuit against the college, claiming that it had wrongfully terminated his employment in violation of the MWA. The trial court partially granted Galvin’s motion for summary judgment, holding that Galvin was entitled to whistleblower protection and had engaged in protected activity because he reasonably believed the college had violated the Clery Act and had objected to this violation during the July 2011 meeting with staff from the Office of the State Auditor. The court held that the remaining issue for trial was whether the whistleblowing was the cause of Galvin’s employment termination. The jury ultimately found in favor of Galvin and awarded him $980,000.

The SJC’s Analysis

On appeal, the college sought review only of the trial court’s grant of summary judgment on the issue of whether Galvin had engaged in protected activity under the MWA. The SJC affirmed the trial court’s summary judgment ruling. The SJC reiterated that the MWA (1) requires only an objectively reasonable belief that the activity to which an employee objects is unlawful, and (2) does not exclude from protection those employees who are involved in the wrongdoing.

The SJC found that Galvin had objected to conduct that was undisputedly illegal under the Clery Act. Additionally, the SJC explicitly rejected the college’s argument that employees who are implicated in the wrongdoing should be excluded from whistleblower protection. The SJC reasoned that “excluding 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.” An employee’s involvement in the illegal activity, however, remains relevant to the separate question of causation, i.e., “whether the cause of the termination was the whistleblowing or the employee’s own misconduct.”

Key Takeaways

An employee implicated in the wrongdoing to which he or she objects remains entitled to protection under the MWA. Accordingly, employers should be aware that they are not insulated from liability solely because the complaining employee participated in the alleged misconduct.

Ogletree Deakins’ Boston office will continue to monitor developments and provide updates on the Ethics / Whistleblower, Higher Education, and Massachusetts blogs as additional information becomes available.

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