Heard: May 16, 2016.
action commenced in the Superior Court Department on February
motion to dismiss was heard by Heidi E. Brieger, J.
G. Powers for the plaintiff.
Jeffrey A. Dretler for the defendant.
Present: Agnes, Massing, & Kinder, JJ.
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. 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.
Standard of review.
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) .
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).
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.
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. During that time period, he was promoted
twice and received excellent performance reviews. His job
duties and responsibilities grew over time.
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,
MBTA management was not interested in changing the
"culture of waste and inefficiency."
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.
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
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
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 rejected that recommendation independently
submitted to them by Turcotte. Kineavy's
safety-compliance reporting duties were switched from Trychon
August, 2012, Turcotte sought in writing Kineavy's
termination based upon Kineavy's verbal threat,
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 ...