Mass. Gen. Laws ch. 149, § 185

Section 185 requires written notice to a supervisor and a reasonable opportunity to correct before whistleblower protection applies, and limits statutory claims to the employer rather than individual employees.

Bennett v. City of Holyoke · filed 2002-11-07(c)(1), (b), (a)(2)

Mass. Gen. Laws ch. 149, § 185(c)(1) spells out specific requirements for persons who wish to disclose information to public bodies and receive the protection of the Massachusetts Whistleblower Statute. They must bring the “activity, policy or practice in violation of a law ... to the attention of a supervisor of the employee by written notice” and afford the employer a “reasonable opportunity to correct the activity, policy or practice.” ... Due to this failure to comply with the notice provisions, defendants are entitled to summary judgment on the plaintiffs’ claim under the Whistleblower Statute with respect to any supposed retaliation stemming from the filing of the Rodriguez MCAD complaint. ... According to the Massachusetts Whistleblower Statute, “[a]n employer shall not take any retaliatory action against an employee” under certain enumerated conditions. Mass. Gen. Laws ch. 149, § 185(b). The statute defines employers as “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). The plain language of the statute suggests that the Massachusetts Legislature intended to exclude claims brought under the Whistle-blower Statute against individual employees, even when acting in their official capacities.

Section 185(c)(1) requires an employee seeking whistleblower protection for a disclosure to a public body to give the employer prior written notice of the unlawful activity and a reasonable opportunity to correct it; the court also treated written notice as required before filing suit.

Wagner v. City of Holyoke · filed 2003-01-24(c)(1)

Mass. Gen. Laws ch. 149, § 185(c)(1) spells out specific requirements for persons who wish to disclose information to a “public body” and receive the protection of the Massachusetts Whistleblower Statute. They must bring the “activity, policy or practice in violation of a law ... to the attention of a supervisor of the employee by written notice” and afford the employer a “reasonable opportunity to correct the activity, policy or practice.” ... The effect of Dirrane, in other words, is to require plaintiffs under the Whistleblower Statute to notify potential defendants in writing, in all circumstances, before filing suit.

Section 185(c)(1) requires written notice to a supervisor and a reasonable opportunity to correct the wrongdoing before the employee can invoke protection for a public-body disclosure, but the requirement is a waivable, nonjurisdictional affirmative defense; § 185(d) makes prejudgment interest available on compensatory economic and noneconomic damages, while § 185(d)(4) additionally permits interest on multiple damages.

Bennett v. City of Holyoke · filed 2004-03-22(c)(1), (d), (d)(4)

The notice requirement in section 185(c)(1), while obligatory, is not jurisdictional in the requisite sense. ... Fairly read, the notice requirement is a procedural accouterment — no more, no less. It sets up a hoop through which a whistleblower plaintiff must jump on his or her way to relief. If the plaintiff fails to attempt the jump, the defendant has available to it an affirmative defense (much like a statute of limitations defense). And like other affirmative defenses, this defense is fully subject to the ordinary rules of waiver. ... We think it is plain that the first tier encompasses prejudgment interest. ... Consequently, the plain meaning of section 185(d) indicates that the plaintiff was entitled to prejudgment interest on the award of compensatory damages. ... Section 185(d)(4)'s authorization of interest on multiple damages is most naturally read as an expansion of the usual rule authorizing prejudgment interest only on compensatory damages, not as a truncation of that rule.

Section 185 requires municipal employees to give their supervisors prior written notice before suing; § 185(c)(2)(C) removes that requirement when the disclosure is made to provide evidence of a crime.

Wagner v. City of Holyoke · filed 2005-04-13(c)(2)(C)

We have previously interpreted the Massachusetts whistleblower statute to preclude suits filed by municipal employees without prior written notice to their supervisors. See Dirrane, 315 F.3d at 73. Section 185(c)(2)(C) of the statute, which eliminates the notice requirement when disclosure is made to provide evidence of a crime, is irrelevant: Wagner makes no claim that the disclosure at issue here--his filing of suit--was for the purpose of providing criminal intelligence, and Wagner admits that he did not serve written notice on his supervisor before bringing suit. The reasoning of our prior decision in Dirrane, which is binding on the panel, thus precludes Wagner's whistleblower claim.

Section 185(c)(1) requires written notice to a supervisor and a reasonable opportunity to correct before an employee discloses wrongdoing to a public body, including a court, but does not impose that requirement on an internal oral disclosure to a supervisor.

Dirrane v. Brookline Police Department · filed 2002-12-31(c)(1), (a)(3)

Reading the pertinent provisions in full (see the appendix), it is apparent that an oral disclosure to a supervisor is protected outright against retaliation; the requirement of written notice and an opportunity to correct is imposed where the disclosure is to an outside public body. ... Under the literal language of the statute, the town is correct; the statute defines "public bodies" to include "any federal, state, or local judiciary." Mass. Gen. Laws ch. 149, § 185(a)(3).

Section 185(b)(1) protects employees who disclose reasonably believed legal violations, but § 185(c)(1) generally requires prior written notice to the employer; § 185(c)(2)(C) exempts disclosures made to provide evidence of a reasonably believed crime.

Delaney v. Town of Abington · filed 2016-09-30(b)(1), (c)(1), (c)(2)(C)

The Whistleblower Statute has a somewhat unusual structure. It protects from employer retaliation an employee who “[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.” Id. § 185(b)(1). An employee may not bring a whistleblower claim on this basis, however, unless he “has [first] brought the activity, policy or practice in violation of a law ... 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.” Id. § 185(c)(1). This provision is interpreted to require that an employee give “unequivocal notice” of the questioned practice to the employer before taking the complaint to an outside authority. Dirrane v. Brookline Police Dep’t, 315 F.3d 65, 73 (1st Cir.2002). ... The undisputed evidence, however, is that Delaney gave no written notice to the Town of his disagreement with the new *403ticketing policy before repairing to the Attorney General’s office in April of 2014 (despite having had ten months from May and June of 2013 to do so). The most that Delaney offers is an instance at a May 29, 2013 roll call, when he claims to have verbally told Sergeant Carini of his objections to the ticketing directive and to have given Carini a copy of the department rule discussing obedience to perceived unlawful orders. No stretch of the imagination can transform an oral remonstration and a copy of a generic department rule into a “written notice” of an objectionable “policy or practice in violation of a law.” ... Delaney more or less concedes the point, but argues that he fits within the statutory exemption from the notice requirement provided for disclosures undertaken “for the purpose of providing evidence of what the employee reasonably believes to be a crime.” Mass. Gen. Laws ch. 149, § 185(c)(2)(C). ... No reasonable person could believe that the payment of legitimately earned overtime could constitute a bribe, or that a factual explanation of a longstanding Town policy regarding the allocation of ticket revenues could amount to a culpable admission to a bribery scheme. Summary judgment is thus warranted for the Town on Count I.

Section 185 protects public employees from retaliation for protected activity and requires written notice to a supervisor or public body, along with a reasonable opportunity for the employer to correct the complained-of practice.

Legasey v. City of Worcester · filed 2018-08-31(c)(1)

A whistleblower claim may not succeed unless the employee brought the complained of practice “to the attention of a supervisor or public body…by written notice and afforded the employer a reasonable opportunity to correct the activity.” Mass. Gen, Law ch. 149 § 185(c)(1).

Section 185(c)(2) excuses prior written notice only when the employee discloses evidence of conduct reasonably believed to be criminal.

Delaney v. Town of Abington · filed 2018-05-04(c)(2)

The exception applies only if the report concerns criminal -- rather than merely unlawful or illegitimate -- conduct.

Section 185(c)(1)'s written notice requirement applies to disclosure claims under § 185(b)(1), but not refusal-to-participate claims under § 185(b)(3).

Quazi v. Barnstable County · filed 2007-12-03(c)(1)

Quazi’s action was brought only under G. L. c. 149, § 185(b)(3), which, unlike G. L. c. 149, § 185(b)(1), is not subject to the written notice requirement of G. L. c. 149, § 185(c)(1).

Section 185 requires written notice to the employer before a whistleblower lawsuit, even if an earlier disclosure of possible criminal activity was exempt from that requirement.

Saunders v. Town of Hull · filed 2017-01-11(c)(1)

Because plaintiff concedes that he did not provide written notice before filing suit, even viewing the disputed facts in his favor, defendant is entitled to judgment as a matter of law on the MWA claim. Although the disclosure of possible criminal activity to the AG’s Office was exempt from the notice requirement, plaintiff was still required to file written notice with his employer before reporting the alleged misconduct to the federal judiciary which is considered a public body under the MWA. Wagner, 241 F.Supp.2d at 98-99.

Section 185(c)(1) requires written notice to the employer of the improper activity before the report can support a whistleblower claim.

Felix v. Town of Kingston · filed 2019-07-08(c)(1)

This conduct also cannot be the basis of a whistleblower claim here because section (c)(1) of the whistleblower statute requires that notice of the improper activity be brought to the employer’s notice “by written notice” and there is no evidence that the plaintiff so complied.

Section 185(b)(2) does not treat testimony given at a private civil deposition as testimony before a qualifying public body merely because attorneys and stenographers are officers of the court.

Scrima v. Gay · filed 2004-06-21(b)(2)

Plaintiff argues that the fact that attorneys and stenographers are “officers of the court” transforms a private civil deposition into a “public body.” The plain language of the Statute does not permit such a reading. Defendants are therefore entitled to summary judgment on Count II.

Section 185(b)(1) requires protected activity to disclose to a public body an activity, policy, or practice of the employer that the employee reasonably believes violates a law.

Amirault v. City of Malden · filed 2018-09-28(b)(1)

In order to constitute protected activity Plaintiff must be disclosing "to a public body an activity, policy or practice of the employer ... that the employee reasonably believes is in violation of a law ...." Mass. Gen. Laws ch. 149, § 185(b)(1) (emphasis added). Thus, the Plaintiff's complaints about Frank Molis do not qualify as protected activities. Moreover, there are no allegations that any City official was aware of his meeting with the ADAs. The absence of any evidence that the alleged retaliators knew of Amirault's protected activity defeats his claim.

Section 185(b)(1) protects disclosures of reasonably believed legal violations and requires written notice and a reasonable opportunity to correct only when the disclosure is made to a public body; disclosures to a supervisor are not subject to that written-disclosure requirement.

Stuart v. City of Gloucester · filed 2021-09-30(b)(1)

Section 185(b)(1) [of the MWPA] prohibits a state employer from retaliating against an employee who “[d]iscloses, 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.” ... “The written disclosure requirement . . . applies only before an employee brings misconduct to the attention of a public body, not before an employee brings misconduct to the attention of a supervisor.” ... Accordingly, based on the relatively undeveloped record on this point, the Court is unable to say with certainty that the written letter to Ms. Leete did not satisfy the disclosure requirement. The parties may raise this issue again at trial.

Section 185(b)(2) protects employees who provide information to or testify before a public body conducting an investigation, hearing, or inquiry into a violation of law; participation in an investigation may qualify, while a report made before the investigation began may not.

Jakuttis v. Town of Dracut · filed 2024-03-07(b)(2)

With respect to the Massachusetts Whistleblower Act claim, Mass. Gen. Laws ch. 149, § 185(b)(2) protects, in relevant part, employees who "[p]rovide[] information to, or testif[y] before, any public body conducting an investigation, hearing or inquiry into any violation of law." Though Jakuttis's initial report of the CS's allegations to O'Hanlon arguably cannot be the basis for a whistleblower action under § 185(b)(2), as the report predated any DEA or other investigation into the officers' drug activity, Jakuttis's later participation in the DEA investigation of the CS's allegations may constitute protected action as defined by § 185(b)(2).

Section 185(b)(1) protects an employee’s attempt to notify a public body of employer conduct the employee believes violates law or regulations.

Bala v. AOtec, Inc. · filed 1998-05-26(b)(1)

Bala, by exercising his rights under G.L.c. 149, §185(b)(l), was attempting to notify a public entity, namely the Marine Corps, of the actions of the Defendants which he believed to be in violation of the FAR rules and regulations, and which could potentially subject himself, the Defendants, and the officers of the corporate Defendants to liability.

Section 185(b)(3) does not protect an objection to a personnel policy that was not promulgated as a rule or regulation pursuant to law.

Service v. Newburyport Housing Authority · filed 2005-04-15(b)(3)

Service’s argument fails as matter of law because the manual could not reasonably be construed as a “rule or regulation promulgated pursuant to law.”

Section 185(b)(3) protects an employee who refuses to participate in conduct the employee reasonably believes violates the law.

Gauthier v. Town of Dracut · filed 2005-06-27(b)(3)

The term “protected activity” embraces an employee’s refusal to participate in a practice, policy or activity which he reasonably believes violates the law. ... The record further indicates that Gauthier reasonably believed that issuing the permits in question (or taking the adverse actions supposedly sought by Shaw) would have been in violation of law.

Section 185(b)(1) protects disclosures of conditions an employee reasonably believes threaten public safety, even if the employee is mistaken about the law governing those conditions.

Trychon v. Massachusetts Bay Transportation Authority · filed 2016-09-15(b)(1)

Second, even if he was mistaken about the track inspection and maintenance laws, Trychon reasonably could have believed, based on HNTB's 2012 report and on common sense, that the MBTA's failure to correct the alarming track conditions for six years posed a risk to the public safety within the meaning of § 185. His disclosures to Turcotte of the updated HNTB report, the nonfeasance by Kineavy and McGuire, and the alleged cover-up by McGuire qualified as protected activity for purposes of pleading his § 185 claim.

Section 185(b)(1) requires a disclosure concerning an employer practice reasonably believed to violate law; complaints about school HVAC problems alone do not satisfy that requirement.

Salmon v. Lang · filed 2021-01-28(b)(1)

More to the point, there is no plausible argument that her complaints about HVAC problems in her school ... amounted to a disclosure of an employer practice “in violation of law.”

Section 185(b) permits a whistleblower-retaliation claim to proceed when a jury could find that municipal decisionmakers knew of the employee’s testimony before a public body and retaliated because of it.

Putnam v. Town of Saugus, Mass. · filed 2005-04-07(b)

The Whistleblower Act gives an aggrieved employee a private right of action against a public employer, including a municipality, if the employer takes retaliatory action against her for engaging in protected activities. ... The Town’s argument here is identical to Vasapolli’s and Bisignani’s argument above in relation to Putnam’s First Amendment claim. For the same reasons stated above, namely that a jury could permissibly find that Vasapolli and Bisig-nani knew about Putnam’s testimony, the Town’s argument is insufficient for a grant of summary judgment of Putnam’s Whis-tleblower claim.

Section 185(b)(1) prohibits an employer from retaliating against an employee for disclosing or threatening to disclose to a supervisor or public body an employer activity, policy, or practice the employee reasonably believes violates a law or legally promulgated rule; at summary judgment, the claim follows a burden-shifting framework.

Cass v. Town of Wayland · filed 2019-05-30(b)(1)

An employer shall not take any retaliatory action against an employee because the employee ... [d]iscloses, 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.... Mass. Gen. Laws ch. 149, § 185(b)(1). Similar to Title IX, the MWA employs a burden-shifting framework at summary judgment. For a plaintiff to prevail on an MWA claim he: must show that he engaged in protected activity and that his participation in that activity played a substantial or motivating part in the retaliatory action. The employer may subsequently avoid liability by proffering a legitimate, nonretaliatory reason for the adverse action. The burden then shifts back to the employee to adduce some significantly probative evidence showing both that the proffered reason is pretextual and that a retaliatory animus sparked his dismissal. Pierce v. Cotuit Fire Dist., 741 F.3d 295, 303 (1st Cir. 2014) (cleaned up). Given the similarities between the Title IX and MWA legal standards, the Court also denies Defendants' motion for summary judgment on Count II.

Section 185(b)(1) requires a whistleblower claimant to prove that the employer engaged in activity the claimant reasonably believed violated a law, rule, or regulation, that the disclosure substantially or materially motivated retaliation, and that the retaliation caused damages.

Taylor v. Town of Freetown · filed 2007-03-29(b)(1)

To succeed on his Massachusetts Whistleblower claim, Plaintiff must show that: (1) he disclosed an activity, policy, or practice of the employer that he reasonably believed to be in violation of a law, rule, or regulation; (2) his disclosure played a substantial or motivating part in the retaliatory action; and (3) the retaliatory action caused him damages. See Larch v. Mansfield Mun. Elec., 272 F.3d 63, 67 (1st Cir.2001); see also Mass. Gen. Laws ch. 149, § 185(b)(1).

Section 185 protects employees who report, testify about, or object to reasonably believed unlawful or public-safety-threatening employer conduct; a subsection (b)(1) claim generally requires prior written notice, and filing a private action waives other state-law remedies for the same employer conduct.

Bolduc v. Town of Webster · filed 2009-05-22(b)(1), (b)(2), (b)(3), (c), (f)

With certain exceptions, not relevant here, the “protection against retaliatory action provided by subsection (b)(1)” does not apply unless the employee has brought the complained-of practice to the attention of his supervisor by written notice and has given the employer a reasonable opportunity to correct the practice. ... Plaintiff here did not give written notice until August 5, 2004, more than four months after he was terminated. He is not, therefore, entitled to the protections of subsection (b)(1). ... Subsection (b)(2), among other things, protects employees who provide information to, or testify before, any “public body” conducting an investigation, hearing, or inquiry into any violation of law, or any activity, policy, or practice which the employee reasonably believes poses a risk to public safety. ... The term “public body” is defined broadly, and includes both a chief of police and a police department disciplinary board. ... Accordingly, plaintiffs claim under § 185(b)(2) is sufficient to survive summary judgment. ... Subsection (b)(3), among other things, protects an employee who objects to, or refuses to participate in, any activity, policy, or practice that the employee reasonably believes is in violation of a law or poses a risk to public safety. Again, while not free from doubt, it appears that plaintiffs conduct here — supporting and corroborating Ralph’s objections to the racist behavior of Barnes — 'is sufficient to fall within the statutory language. Accordingly, the claim under § 185(b)(3) is likewise sufficient to survive summary judgment. ... That statute provides that the “institution of a private action in accordance with [the statute] shall be deemed a waiver by the plaintiff of the rights and remedies available to him, for the actions of the employer, under any ... state law, rule or regulation, or under the common law.” Accordingly, the filing of this lawsuit waived any claim by plaintiff against the Town under Mass. Gen. Laws ch. 151B for retaliation.

Section 185(b)(1) protects an employee who discloses or threatens to disclose an employer practice reasonably believed unlawful, but requires written notice to a supervisor and a reasonable opportunity to correct it, unlike § 185(b)(3).

Pierce v. Cotuit Fire District · filed 2014-01-28(b)(1), (b)(3), (c)(1)

Section 185(b)(1) prohibits a state employer from retaliating against an employee who "[d]iscloses, 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." Mass. Gen. Laws ch. 149, § 185(b)(1). Section 185(b)(3) of the statute prohibits an employer from retaliating against an employee who "[o]bjects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes is in violation of a law." Id. § 185(b)(3). To qualify for protection under section 185(b)(1), but not under section 185(b)(3), an employee must first "br[ing] the activity, policy or practice . . . to the attention of a supervisor of the employee by written notice and . . . afford[] the employer a reasonable opportunity to correct the activity, policy or practice." Id. § 185(c)(1). ... To prevail on an MWA claim, an employee must show "that he engaged in protected activity and that his participation in that activity played a substantial or motivating part in the retaliatory action."

Section 185(5) protects employees from retaliation for specified disclosures, testimony, or refusals concerning reasonably believed legal violations or risks to public health, safety, or the environment, but internal complaints made as part of supervisory duties or lacking the required public concern fall outside the Act’s protection.

Slattery v. Town of Framingham · filed 2020-11-09(4), (5)

The MWA provides that a public employer may not retaliate against an employee who (1) discloses, or threatens to disclose to a supervisor or to a public body a practice which 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 a public body conducting an investigation into any violation of law or risk to public health, safety or the environment; or (3) objects to or refuses to participate in any activity which the employee reasonably believes is in violation of law or poses a risk to public health, safety or the environment. Mass. Gen. Laws ch. 149, § 185(5). The type of reporting that the MWA seeks to protect is that wherein a subordinate becomes aware of a violation and reports it to a supervisor who has the power to remedy it. Id. § 185(4) (defining “supervisor” as someone “who has authority to take corrective action regarding the violation of the law, rule or regulation of which the employee complains”). ... Turning to his more recent reporting of improprieties within the FPD, Plaintiff fails to allege that he “disclosed or threatened to disclose” to an FPD supervisor or a public body any wrongdoing within the FPD in the manner contemplated by the statute. While Plaintiff may have undertaken the investigations because of improprieties within the FPD and may have involved Chief Ferguson and Acting Chief Trask, he did so pursuant to his duties as a Deputy Chief to take corrective action in the units over which he had supervisory authority. And regarding the internal misconduct reports and grievances, those also fall outside of the protections provided by the MWA, as they do not rise to the “requisite level of public concern” necessary to form the basis of a wrongful discharge claim.

Section 185(a)(5) prohibits an employer from taking retaliatory action, including discharge or other adverse employment action, because an employee engaged in protected activity, and that statutory right is independent of rights under a collective bargaining agreement.

Kleeberg v. The Berkshire Gas Company · filed 2023-12-14(a)(5)

The WPA prohibits an employer from “‘tak[ing] any retaliatory actions,” including “the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment,” because the employee has engaged in certain protected activities. Mass. Gen. Laws ch. 149, §§ 185(a)(5), (b). Included among those protected activities is “[o]bject[ing] to, or refus[ing] to participate in any activity, policy or practice which the employee reasonably believes … poses a risk to public health, safety or the environment.” Mass. Gen. Laws ch. 149, § 185(b)(3). The elements of a whistleblower claim under the statute are that “(1) the plaintiff-employee engaged in an activity protected by the act; (2) the protected activity was the cause of an adverse employment action, such that the employment action was retaliatory; and (3) the retaliatory action caused the plaintiff damages.” Edwards v. Commonwealth, 174 N.E.3d 1153, 1166 (Mass. 2021) (string cite omitted). The employee activities protected by the WPA are independent of any of Defendants’ undertakings in the CBA. The WPA’s prohibition of retaliation against an employee for protesting a policy or practice that the employee reasonably believes endangers public health or safety is a statutory right conferred on employees in Massachusetts independent of any rights the employee would have under a collective bargaining agreement. Livadas and the cases on which it relies teach that claims predicated on the independent employee rights protected by the WPA are not preempted by Section 301. Id., 512 U.S. at 124-25.

Section 185 gives an employee a private right to sue a public employer for retaliatory action based on protected activity, requiring proof that the activity substantially or motivatingly contributed to the retaliation.

Gutwill v. Framingham · filed 2020-01-22(a)(5)

Under the Massachusetts Whistleblower Act (“MWA”), an employee has a private right of action against a public employer if the employer takes retaliatory action against the employee for engaging in protected activities. “In order to prevail on a claim under the whistleblower statute, a plaintiff must show that he engaged in protected activity and that his participation in that activity played a substantial or motivating part in the retaliatory action.” ... Retaliatory action “include[s] discharge, suspension, demotion, or any other action that adversely affects the terms and conditions of the employment.”

Section 185(b)(1) uses a burden-shifting retaliation framework paralleling the Mt. Healthy First Amendment standard: after the employee shows protected conduct was a substantial or motivating factor, the employer must show it would have made the same decision anyway.

Stuart v. City of Framingham · filed 2021-02-24(b)(1)

The same standard applies to Stuart's Massachusetts Whistleblower Act claim. "[A] plaintiff's burden of proof under the [Massachusetts Whistleblower Act] closely parallels his burden for First Amendment discrimination under Mt. Healthy." Pierce v. Cotuit Fire Dist., 741 F.3d 295, 303 (1st Cir. 2014); see also Antonellis v. Dep't of Elder Affs., 152 N.E.3d 798, 811 (Mass. App. Ct. 2020).

Section 185(b)(3) protects an employee who refuses to participate in conduct the employee reasonably believes violates a law; the employee need not prove that the conduct actually violated the underlying law.

Larch v. Mansfield Municipal Electric Department · filed 2001-12-03(b)(3)

Since a reasonable belief that hiring Forbes upon Colella's order is enough to establish a violation of the statute, we do not have to decide whether Colella's conduct in fact violated § 56.

Section 185’s reasonable-belief and retaliatory-intent issues are fact-based determinations that may warrant denial of summary judgment.

Walker v. City of Holyoke · filed 2007-11-30(b)

However, both the issues of reasonable belief and retaliatory intent are relatively fact-based determinations. The court is reluctant to undertake them at this stage, especially since the sparse precedent regarding the Massachusetts Whistleblower Act, contrasting with the abundant case law on the federal law claims, provides little guidance as to the correct application of the statute. Therefore, the court will deny summary judgment on Count XIII but dismiss it as a matter of discretion without prejudice to re-filing in state court.

Section 185(b) permits a retaliation claim based on unpaid administrative leave imposed after an employee refuses inquiries she believes violate her privacy.

Spartaro v. Commonwealth · filed 2007-01-04(b)

Count II of the complaint alleges that the defendants violated public policy by placing Spartaro on unpaid administrative leave when she refused to answer inquiries about her intimate, personal associations. The complaint further alleges that Spartaro’s refusal was based on her belief that the inquiries violate her privacy. These allegations are sufficient to make out a claim for retaliation pursuant to G.L.c. 149, §185(b).

A whistleblower retaliation claim can survive summary judgment when circumstantial evidence creates a genuine dispute about whether protected activity motivated the employer’s action.

Welch v. Ciampa · filed 2008-09-23(b)(2)

In order to prevail on a claim under the whistleblower statute, a plaintiff must show that he engaged in protected activity and that his participation in that activity played a substantial or motivating part in the retaliatory action. ... We conclude that there is circumstantial evidence sufficient to create a genuine issue of material fact as to whether Welch was not reappointed because of his involvement in the grand jury investigation.

Section 185(b)(1) requires an employee to show that protected activity played a substantial or motivating part in the employer’s adverse action.

Stuart v. City of Framingham · filed 2020-01-22(b)(1)

Stuart’s claims under the MWA fail. As discussed above, a reasonable jury could not find that Stuart’s protected speech played a substantial or motivating part in the retaliatory action.

Section 185 requires a retaliation plaintiff to show protected activity and that the activity played a substantial or motivating part in the retaliatory action.

Fournier v. Commonwealth of Massachusetts · filed 2021-09-15

Similarly, to establish a retaliation claim under the MWA, a plaintiff "must show that [she] engaged in protected activity and that [her] participation in that activity played a substantial or motivating part in the retaliatory action." ... Fournier has established a prima facie case of retaliation under Title VII and the MWA.

Section 185 requires the employer to know of the protected activity before taking retaliatory action, and the employee must show a causal connection between the activity and the adverse action.

GOODALE v. TOWN OF UPTON & Others. · filed 2023-08-08

The act requires that "the employer knew of the protected activity before undertaking the retaliatory action." ... Because the plaintiff has not placed facts in dispute to show a causal connection between protected activity and his subsequent termination, his whistleblower claim was properly dismissed on summary judgment.

Section 185(b)(3) protects an employee who refuses to participate in conduct the employee reasonably believes violates the law, without the written notice required by § 185(c)(1), while § 185(f) waives other claims against the employer but does not bar claims against separate individual defendants.

Mailloux v. Town of Littleton · filed 2007-01-11(b)(3), (c)(1), (f)

Defendants are mistaken. An action brought under section 185(b)(3) is not subject to the notice provision of section 185(c)(1). ... To read a written disclosure requirement into section 185(b)(3) for filing a lawsuit would run counter to the express language of the statute. ... Under section 185(f) of the Whistleblower Statute, “[t]he institution of a private action [under this statute] ... shall be deemed a waiver by the plaintiff of the rights and remedies available to him for the actions of the employer, under any other contract, collective bargaining agreement, state law, rule or regulation under common law.” ... This court agrees with Defendants that Plaintiffs breach of contract and promissory estoppel claims against the Town are barred by Plaintiffs whistleblower claim. But the statute only bars claims against the employer.

Section 185(f) waives an employee’s other contract, collective-bargaining, state-law, regulatory, and common-law rights and remedies against the employer when the employee institutes a private whistleblower action, for related claims arising from the same conduct.

McGinn v. Executive Office of Energy and Environmental Affairs · filed 2020-09-30(f)

the institution of a private action in accordance with subsection (d)9 shall be deemed a waiver by the plaintiff of the rights and remedies available to him, for the actions of the employer, under any other contract, collective bargaining agreement, state law, rule or regulation, or under the common law. ... But Plaintiff’s argument is not persuasive where the plain text of the Whistleblower Act provides that Plaintiffs must make the election early in the proceeding and that by instituting the Whistleblower Act claim, plaintiff has waived other rights and remedies. ... Accordingly, the remaining state law claims against the Executive Office11 are subject to dismissal.

Section 185(f) waives a plaintiff’s other state-law and common-law claims arising from the same retaliatory conduct when the plaintiff files a private action under § 185; later dismissal does not undo the waiver.

Connolly v. Woburn Public Schools · filed 2023-03-02(f)

However, a plaintiff who brings a § 185 claim must waive certain other claims. “[T]he institution of a private action in accordance with subsection (d) shall be deemed a waiver by the plaintiff of the rights and remedies available to [the plaintiff], for the actions of the employer . . . under any . . . state law, rule or regulation, or under the common law.” Id. § 185(f). ... By filing a complaint with a § 185 claim, plaintiff waived all other statutory and common-law claims related to her retaliation claim. That includes her claims of unlawful retaliation and hostile work environment arising out of her advocacy for disabled students under Chapter 151B, as set forth in Count Three. ... The fact that plaintiff has since dismissed her § 185 claim does not affect that waiver. The text of the statute provides that “institution” of a private action waives state and common-law claims. Mass. Gen. Laws ch. 149, § 185(f). Under Massachusetts law, a plaintiff institutes a private action by filing a complaint. ... A plaintiff therefore waives her statutory and common-law claims under § 185 when she files a complaint.

Section 185(d) gives an aggrieved employee two years to sue, and § 185(f)'s waiver of other remedies applies only when the private action is instituted in accordance with subsection (d).

Oberg v. City of Taunton · filed 2013-09-25(d), (f)

In the case at bar, however, Plaintiff did not institute the whistleblower claim “in accordance with subsection (d).” Subsection (d) is the statute of limitations provision that allows an aggrieved employee to file a civil action within two years.63 As explained above, Plaintiff instituted suit outside the two-year time frame. ... Subsection (f)’s precise reference to subsection (d), which, in turn, contains the caveat of instituting the civil action “within two years,” makes the waiver provision inapplicable. ... The exclusivity argument based on subsection (f) accordingly does not provide a basis to dismiss counts Four, Seven, Eight, Ten, Eleven, or Thirteen against the City.

Section 185(f) deems instituting a private whistleblower action an early waiver of other rights and remedies against the employer for related claims arising from the same core retaliatory conduct.

McGinn v. Executive Office of Energy and Environmental Affairs · filed 2020-10-23(f)

the institution of a private action in accordance with subsection (d)10 shall be deemed a waiver by the plaintiff of the rights and remedies available to him, for the actions of the employer, under any other contract, collective bargaining agreement, state law, rule or regulation, or under the common law. ... The only limitation on the waiver provision is that it extends only “to related claims seeking damages essentially for the same conduct . . . that constituted the core retaliation for the whistleblowing.” ... But Plaintiff’s argument is not persuasive where the plain text of the Whistleblower Act provides that Plaintiffs must make the election early in the proceeding and that by instituting the Whistleblower Act claim, plaintiff has waived other rights and remedies. ... Accordingly, the remaining state law claims against the Executive Office12 are subject to dismissal.

Section 185(f) waives a plaintiff’s right to pursue related common-law claims when the plaintiff brings a private Whistleblower Act action for the same retaliatory conduct.

Kleeberg v. The Berkshire Gas Company · filed 2022-12-06(f)

Accordingly, pursuant to Mass. Gen. Laws ch. 149, § 185(f), Plaintiff has waived his right to bring related common claims for termination in violation of public policy and breach of contract and of the implied covenant of good faith and fair dealing in connection with the termination of his employment.

Section 185(f) waives claims arising from the alleged retaliatory action when an employee brings a whistleblower claim, but preserves substantially separate and independent claims.

Haddad v. Scanlon · filed 1999-07-16(f)

Accordingly, the court holds that a state employee who institutes an action under G.L.c. 149, §185(d), waives all rights and remedies arising out of the retaliatory action, but does not waive claims which are substantially separate from and independent of the cause of action to recover for the retaliatory action.

Section 185(f) waives alternative claims only when the whistleblower claim can substantively proceed under the statute.

Boisvert v. Genzyme Corp. · filed 2011-10-05(f)

As such, the court finds that the waiver provision applies only to claims “that may actually be pursued substantively via the Whistleblower Statute.” See Bennet, 230 F.Sup.2d at 221.

Section 185(f) bars an employee who files a whistleblower civil action from obtaining collective bargaining remedies, but permits the union to arbitrate its independent interests.

City of Everett v. International Brotherhood of Police Officers Local 633 · filed 2003-03-31(f)

The Whistleblower Statute plainly precludes the employee, but not the union, from pursuing, through arbitration, his rights under a collective bargaining agreement once he has filed a civil action in court. Therefore, for the union to continue with this arbitration, it must have rights and remedies — or interests — independent of the aggrieved member it represents.

Section 185(f) does not waive state law claims that are distinct from a claim for whistleblower retaliation.

Leon-McCormick v. City of Revere · filed 2025-02-12(f)

Nor are McCormick’s state law claims against the City that are unrelated to any retaliation—namely, violation of the Massachusetts Equal Pay Act, violation of the Massachusetts Wage Act, violation of the statutory right to privacy under M.G.L. c. 214, § 1B, and violation of M.G.L. c. 151B based on gender-based discrimination—barred as these are distinct from the claim to recover for the retaliatory action.

Section 185 applies only to governmental entities, so it does not cover a private ambulance service.

LUU v. FALLON SERVICE, INC., & Another · filed 2025-01-30(a)(2)

In fact, it applies only to governmental entities, G. L. c. 149, § 185 [a] [2].

Section 185(2) defines an employer to include the Commonwealth and its agencies or political subdivisions, including cities, towns, counties, regional school districts, and their authorities, commissions, boards, or instrumentalities.

Estock v. City of Westfield · filed 2011-07-26(2)

Employers include “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(2). The only defendants who could be liable under the statute are the City of Westfield and the School Board, yet Plaintiff alleged no facts pertaining to any conduct, wrongful or otherwise, on the part of the City or any Board members.

Section 185(b)(1) protects only an employee who has an employment relationship with the defendant and plausibly alleges the required whistleblower-retaliation elements.

Dowgiewicz v. Webster, Town of · filed 2019-11-07(b)(1)

Under the Massachusetts Whistleblower Statute, “[a]n employer shall not take any retaliatory action [including discharge or suspension] against an employee because the employee . . . [d]iscloses, 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 . . . .” Mass. Gen. Laws ch. 149, § 185(b)(1). Consequently, to plead the elements of the Statute, a plaintiff must plausibly allege that: (1) he objected to an activity, policy or practice that he reasonably believed was in violation of a law, rule or regulation; (2) that his refusal to participate in the activity played a substantial or motivating part in the decision to impose suspension or discharge; and (3) that the retaliatory action caused him damages. Cf. Larch v. Mansfield Mun. Elec. Dep’t, 272 F.3d 63, 67 (1st Cir. 2001). Because Dowgiewicz cannot establish an employment relationship with any of the defendants, he cannot claim the protections of the Statute.

Section 185 permits suit only against an employer, not an individual supervisor or employee, and defines an employer to include the Commonwealth and its political subdivisions.

Melville v. Town of Adams · filed 2014-03-27(a)(2), (b)

As the First Circuit has explained, however, “[t]he Whistleblower statute permits only an ‘employer’ to be sued, not individual supervisors.” Welch, 542 F.3d at 943 n. 7 (quoting Bennett v. City of Holyoke, 230 F.Supp.2d 207, 221 (D.Mass.2002)). Poirot cannot be considered Plaintiffs “employer,” nor, for that matter, even her supervisor. See M.G.L. c. 149, sec. 185(a)(2) (defining “employer” as “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’). Because Plaintiff only brought this claim against Poirot, it is subject to dismissal. See Bennett, 230 F.Supp.2d at 221 (“The plain language of the statute suggests that the Massachusetts Legislature intended to exclude claims brought under the Whistleblower Statute against individual employees, even when acting in their official capacities.”); see also Welch, 542 F.3d at 943 n. 7. The court will therefore recommend that Count VI be dismissed.

Section 185 allows a whistleblower claim against the employee's employer, not everyone in the employee's chain of command.

Fisher v. Commonwealth · filed 2001-08-23(b)

During the hearing on this motion, held on August 3, 2001, as a apparent result of the court’s dialogue with plaintiffs counsel, it appeared that counsel agreed with the court’s interpretation of the statute that such an action can only be prosecuted against one’s employer, and although the definition of “employer” does include the Commonwealth and any of its agencies or political subdivisions, its meaning plainly intends the action be brought against one's employer and that it did not intend to include everyone who might be considered in the chain of command.

Section 185 permits a whistleblower retaliation claim against the employee’s public employer, but does not impose individual liability on supervisors.

Orell v. UMass Memorial Medical Center, Inc. · filed 2002-04-29(a)(2)

The plain language of the statute does not support the imposition of individual liability. The definition enumerates several entities considered to be employers within the meaning of the statute but does not contain terms suggesting an intent to establish individual liability.

Section 185 excludes a private joint venture from its definition of an employer, even when it works with a public agency.

Ahanotu v. Massachusetts Turnpike Authority · filed 2006-12-08(a)(2)

B/PB is a joint enterprise of two corporations, not a state agency or political subdivision of the Commonwealth. Whatever the nature of the relationship between B/PB and the MTA, it cannot be said that B/PB is an instrumentality of the state based on a plain reading of the statute. The whistleblower claims against B/PB will, therefore, be dismissed.

A § 185 claimant who alleges neither a public employer nor a covered utility employer cannot proceed against a private entity.

ABRAHAM KASPARIAN, JR. v. TRANSITIONS CENTERS, INC., & Others. · filed 2024-06-28(a)(2)

"Employer" is defined to include only a subset of public employers. G. L. c. 149, § 185 (a) (2). The plaintiff has not alleged that Transitions is a public entity as defined by the statute, so the claim cannot proceed.

Section 185(d) gives a retaliation claim under the whistleblower statute a two-year limitations period.

Perez v. Greater New Bedford Vocational Technical School District · filed 2013-11-13(d)

The limitations period for a claim of retaliation under the whistleblower statute is two years. Mass. Gen. Laws ch. 149, § 185(d).

Section 185 has no retrospective effect, but its enactment establishes a public policy protecting whistleblowers.

Holden v. Worcester Housing Authority · filed 1995-07-24

Although the statute has no retrospective effect, its enactment does demonstrate that the protection of whistleblowers is a recognized public policy.

Section 185(d) permits a court to order an employer to pay reasonable attorney fees and litigation costs, including documented expenses reasonably incurred in the action.

Roberts v. Department of State Police · filed 2002-09-26(d)

In addition to taxable costs, successful litigants may recover actual, reasonable costs of the action if a statute specifically permits the award of costs. Id. The Massachusetts Whistleblower statute, G.L.c. 149, § 185(d) states, “The court may . . . order payment by the employer of reasonable costs, and attorneys fees.”