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Trychon v. Massachusetts Bay Transportation Authority

Appeals Court of Massachusetts, Suffolk

September 15, 2016

STEPHEN TRYCHON
v.
MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.

          Heard: May 16, 2016.

         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.

          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.[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) .

         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-Hernandez v. Fortuno-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 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 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 ...


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