Opinion
Civil Action No. 06-10366-FDS.
December 4, 2006
This action is brought pursuant to 42 U.S.C. § 1983 and the First Amendment to the United States Constitution; the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I; and the Massachusetts whistleblower statute, Mass. Gen. Laws ch. 149, § 185.
Plaintiff Derek Lamica contends that his employer, defendant Town of Southbridge, unlawfully retaliated against him for engaging in protected conduct. Specifically, he contends that he was wrongfully disciplined by defendant Leonard N. Laporte, chief of the Southbridge Fire Department, for providing a copy of a report issued by the Massachusetts Division of Occupational Safety concerning air quality in the Southbridge fire station to a member of the Southbridge Town Council.
Pending before the Court is defendants' partial motion to dismiss plaintiff's whistleblower claim. Defendants contend that plaintiff failed to comply with the written notice requirement mandated by the whistleblower statute. Alternatively, defendants ask that the whistleblower claim be dismissed as to Laporte, contending that such a claim can only be brought against a town, and not against an individual acting in his official capacity. For the reasons set forth below, defendants' partial motion to dismiss will be denied.
I. Factual Background
Lamica is employed by the Town as a firefighter for the Southbridge Fire Department. On February 24, 2004, Lamica placed a call to the Division of Occupational Safety of the Commonwealth of Massachusetts, Department of Labor and Workforce Development, seeking technical assistance concerning combustion gases at the Southbridge fire station. In response to this call, representatives of the Division conducted an investigation of the fire station's air quality. This investigation resulted in a written report setting forth recommendations for correcting exhaust and water damage problems in the station. A copy of this report was provided to Lamica as initiator of the investigation.
On April 19, 2004, David Langevin, an elected member on the Southbridge Town Council, contacted Lamica and requested a copy of the Division of Occupational Safety's report. Lamica complied with the request and provided a copy.
After learning that Langevin had acquired the report, Fire Chief Laporte conducted an investigation into who had provided it. Lamica admitted to being Langevin's source. Consequently, on May 4, 2004, Laporte formally disciplined Lamica by issuing an oral reprimand. This reprimand threatened further discipline for any similar incidents in the future. According to Lamica, Laporte has used the reprimand as a basis for issuing further disciplinary actions against him.
II. Procedural History
Lamica filed this action against the Town, the Southbridge Fire Department, and Laporte on February 28, 2006. He amended the complaint on July 11, 2006, removing the Fire Department as a defendant. The three-count amended complaint alleges violations of (1) 42 U.S.C. § 1983 and the First Amendment to the United States Constitution; (2) the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I; and (3) the Massachusetts whistleblower statute, Mass. Gen. Laws ch. 149, § 185.
On July 31, 2006, defendants moved to dismiss Count III of the amended complaint (the whistleblower claim) pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim on which relief can be granted. Defendants have alternatively moved to dismiss Count III as to Laporte.
III. Analysis
A motion to dismiss under Rule 12(b)(6) "serves only one purpose, and that is to test the legal sufficiency of the allegations, not of the evidence likely to be introduced at trial or on a motion for summary judgment." In re Digital Equipment Corp. Securities Litigation, 601 F. Supp. 311, 313 n. 2 (D. Mass. 1984). The court must "assume the truth of all well-pleaded facts and indulge all reasonable inferences that fit the plaintiff's stated theory of liability." Redondo-Borges v. United States Dept. of Housing and Urban Development, 421 F.3d 1, 5 (1st Cir. 2005) (citation omitted). A claim should be dismissed pursuant to Rule 12(b)(6) "only if 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Roeder v. Alpha Industries, Inc., 814 F.2d 22, 25 (1st Cir. 1987) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
A. Motion to Dismiss Whistleblower Claim
Defendants seek dismissal of Lamica's whistleblower claim on the ground that he failed to provide his employer with written notice and reasonable opportunity to correct the alleged wrongdoing before filing suit.
The Massachusetts whistleblower statute, Mass. Gen. Laws ch. 149, § 185, precludes a public employer — including a municipality — from retaliating against an employee who engages in protected conduct. See Bennett v. City of Holyoke, 362 F.3d 1, 5 (1st Cir. 2004). Specifically, the statute provides:
(b) 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 or to a public body 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;
(2) Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law, or activity, policy or practice which the employee reasonably believes poses a risk to public health, safety or the environment by the employer . . .
Mass. Gen. Laws ch. 149, § 185(b).
Most plaintiffs raising a whistleblower claim "must satisfy a statutory notice requirement." Bennett, 362 F.3d at 6. Section 185(c) of the whistleblower statute states:
the protection against retaliatory action provided by subsection (b)(1) shall not apply to an employee who makes a disclosure to a public body unless the employee has brought the activity, policy or practice 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, to the attention of a supervisor of the employee by written notice and has afforded the employer a reasonable opportunity to correct the activity, policy or practice.
There are some exceptions to this notice requirement, such as (1) where the employee is reasonably certain that the employer is aware of the activity and the situation is emergency in nature; (2) where the employee reasonably fears physical harm as a result of the disclosure; or (3) where the employee makes the disclosure for the purpose of providing evidence of what he reasonably believes to be a crime. Mass. Gen. Laws ch. 149, § 185(c)(2). None of these exceptions, however, are present in this case.
Mass. Gen. Laws ch. 149, § 185(c)(1).
This matter is largely controlled by the First Circuit's opinion in Dirrane v. Brookline Police Dept., 315 F.3d 65 (1st Cir. 2002). In Dirrane, a police officer brought a whistleblower claim against the town of Brookline, Massachusetts, claiming that he had suffered retaliation for oral disclosures made to his supervisors regarding alleged abuses within the police department. Dirrane, 315 F.3d at 68. The town moved to dismiss the claim, contending that Dirrane had not given the requisite written notice prior to making his disclosures. Id. at 72-73. Alternatively, the town contended that because the term "public body," as defined in the whistleblower statute, includes "any federal, state, or local judiciary," the filing of the lawsuit also constituted a disclosure to a public body, and therefore required prior written notice as well. Id. at 73 (quoting Mass. Gen. Laws ch. 149, § 185(a)(3)). Because Dirrane had only made oral, not written, disclosures to supervisors before bringing the case, the town contended that his whistleblower claim was barred. Id.
The Dirrane court began its analysis by indicating that the Brookline Police Department was the "public body" to which Dirrane initially reported the alleged wrongdoing. Id. The police department was also his employer. Id. After noting that the purpose of the written notice requirement was "to give the employer unequivocal notice ( i.e., in writing) and an opportunity to clean up its own house before the matter was taken outside," the court concluded that such notice would be unnecessary where the disclosure was made only internally to the employer. Id. As the court stated:
The definition of "public body" set forth in the whistleblower statute includes "any federal, state or local law enforcement agency, prosecutorial office, or police or peace officer." Mass. Gen. Laws ch. 149, § 185(a)(3).
It is happenstance, and irrelevant to the obvious purpose of the written notice requirement, that the department itself happens to be a "public body" to which employees of other agencies might bring complaints about wrongdoing of their own employers. In short, to treat Dirrane's internal complaints as triggering the notice requirement makes no sense.Id. (emphasis in original). The court held that the whistleblower statute's "requirement of written notice and an opportunity to correct is imposed where the disclosure is to an outside public body." Id. (emphasis in original).
The Dirrane court then turned to the town's second ground for dismissal — that the filing of the lawsuit was a separate and additional disclosure subject to the written notice requirement, and that Dirrane had failed to comply with that requirement. Id. The court agreed that, pursuant to the whistleblower statute, a court is a "public body," and that the filing of a lawsuit qualifies as a disclosure for purposes of the statute. Id. It then adopted a literal reading of the statute, stating that "the statute is unqualified in its requirement and in this instance a hard and fast rule does serve a rational purpose, namely, by avoiding uncertainties about what might have happened if formal notice had been given." Id. The court held that prior written notice to the employer and opportunity to correct was required before a plaintiff could bring a whistleblower claim. Id. Because Dirrane had given only oral notice to his supervisors, his whistleblower claim was barred. Id.
In the present case, the public body to which Lamica made his initial disclosure was also his employer. Specifically, the disclosure for which Lamica claims unlawful retaliation is the submission of the air quality report to the Town, through Town Councilor Langevin. Because plaintiff's disclosure was merely internal and not to an outside body, the holding in Dirrane dictates that the written notice requirement does not apply. Id. His disclosure is entitled to the statute's protection regardless of whether he provided prior written notification of wrongdoing.
The whistleblower statute's definition of "public body" includes "any popularly elected local government body, or any member or employee thereof." Mass. Gen. Laws ch. 149, § 185(a)(3). Similarly, the statute's definition of "employer" includes "the commonwealth, and its agencies or political subdivisions, including, but not limited to, cities, towns, counties and regional school districts, or any authority, commission, board or instrumentality thereof." Mass. Gen. Laws ch. 149, § 185(a)(2).
Lamica further contends that the written notice requirement does not apply here because his disclosure falls under § 185(c)(2) — as he provided information to a public body in response to an inquiry by that body — and because by its terms, the written notice requirement only applies to § 185(b)(1). See Mass. Gen. Laws ch. 149, § 185. In light of the Court's conclusion that Lamica's disclosure was made only to his employer, and is therefore immune from the written notice requirement, it need not determine whether the disclosure falls under § 185(b)(1) or (b)(2).
By contrast, Dirrane makes clear that Lamica's second disclosure (the filing of this lawsuit) is not exempted from the written notice requirement. Id. The question, then, is whether Lamica provided his employer with written notice of the alleged wrongdoing and afforded the employer a reasonable opportunity to correct it prior to bringing this action. The answer to this question is in the affirmative. As previously indicated, the Town was Lamica's employer. The individual to whom he disclosed the wrongdoing — Town Councilor Langevin — was a duly elected representative of the employer. The Court thus finds that by providing Langevin with a copy of the report, Lamica notified his employer of the wrongful conduct. Further, unlike the disclosure in Dirrane, Lamica's disclosure to Langevin was in writing. Finally, the Town had ample opportunity to respond to and correct this alleged wrongdoing, as Langevin was given the report in April 2004 and the present action was not filed until February 2006.
* * *
In summary, Lamica's initial disclosure (the leaking of the report) was not subject to the whistleblower statute's written notice requirement, because that disclosure was made to Lamica's employer, and the notice requirement only applies "where the disclosure is to an outside public body." Dirrane, 315 F.3d at 73 (emphasis in original). The second disclosure (the filing of the present lawsuit) was subject to the written notice requirement. Id. Lamica satisfied this requirement, however, when he presented a written report, setting forth the alleged wrongdoing, to the Town, through Town Councilor Langevin. Defendants' motion to dismiss Lamica's whistleblower claim will therefore be denied.
B. Motion to Dismiss Whistleblower Claim as to Laporte
Defendants move, in the alternative, to dismiss Count III as to defendant Laporte. In support of their motion, defendants contend that the whistleblower statute only permits a claim against plaintiff's employer, not an individual supervisor. See Bennett v. City of Holyoke, 230 F. Supp. 2d 207, 221 (D. Mass. 2002) (citing Orell v. University of Mass. Med. Ctr., Inc., 203 F. Supp. 2d 52 (D. Mass. 2002)).
In his opposition to defendants' motion to dismiss, plaintiff clarifies that Count III of his amended complaint is only asserted against the Town, and not against Laporte individually. Accordingly, defendants' motion to dismiss Count III as to Laporte will be denied as moot.
IV. Conclusion
For the foregoing reasons, defendants' partial motion to dismiss Count III of the amended complaint, or alternatively, to dismiss Count III as to Leonard N. Laporte, individually, is DENIED.