RETALIATION DEMAND LETTER

Massachusetts Whistleblower Protection and Anti-Retaliation Claims

[ATTORNEY/FIRM LETTERHEAD]

[Firm Name]
[Address Line 1]
[City, Massachusetts ZIP]
Tel: [Phone Number]
Fax: [Fax Number]
[Attorney Email]
[Massachusetts Board of Bar Overseers Number]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND VIA EMAIL TO: [recipient_email]

[Date]

[Employer Contact Name]
[Title]
[Company Legal Name]
[Company Address]
[City, State ZIP]

Copy to:
[General Counsel]
[EPLI Carrier, if known]

Re: Unlawful Retaliation Against [Client Full Name]
MCAD Docket No.: [XXXXX] (if applicable)
EEOC Charge No.: [XXX-XXXX-XXXXX] (if applicable)
CONFIDENTIAL SETTLEMENT COMMUNICATION PURSUANT TO MASS. R. EVID. 408

Dear [Mr./Ms./Mx. Last Name]:

This firm represents [Client Full Name] ("our client") in connection with claims of unlawful retaliation against [Company Legal Name] ("[Company Short Name]" or "the Company"). Please direct all future communications regarding this matter to our office.

Our client engaged in legally protected activity by [briefly describe protected activity], and [Company Short Name] retaliated by [briefly describe adverse action]. This retaliation violates Massachusetts law and exposes the Company to substantial liability for compensatory damages, treble damages, and attorney's fees.

We write to demand immediate resolution of this matter and to advise that we are prepared to file suit if a satisfactory response is not received.

I. MASSACHUSETTS-SPECIFIC LEGAL FRAMEWORK

A. Massachusetts Whistleblower Protection Act

The Massachusetts Whistleblower Protection Act, Mass. Gen. Laws ch. 149, Section 185, provides robust protection for employees who report illegal activity or refuse to participate in unlawful conduct.

Key Provisions:

Under Mass. Gen. Laws ch. 149, Section 185(b), an employer shall not:
- Take any retaliatory action against an employee because the employee:
- 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;
- Provides information to, or testifies before, any public body conducting an investigation, hearing, or inquiry into any violation of law;
- Objects to, or refuses to participate in, any activity, policy, or practice which the employee reasonably believes is in violation of a law.

Internal Reporting Requirement: Before disclosing to a public body, an employee must first bring the activity to the attention of a supervisor in writing and give the employer a reasonable opportunity to correct the activity, unless the employee has specific reason to believe that reporting to management would not result in corrective action. Mass. Gen. Laws ch. 149, Section 185(c).

Statute of Limitations: Two (2) years from the date of the retaliatory action. Mass. Gen. Laws ch. 149, Section 185(d).

Remedies under Section 185:
- Injunctive relief
- Reinstatement with back pay
- Compensation for lost wages, benefits, and other remuneration
- Treble damages in cases of willful violation
- Reasonable attorney's fees and costs

B. Massachusetts Fair Employment Practices Act (Chapter 151B)

The Massachusetts Fair Employment Practices Act, Mass. Gen. Laws ch. 151B, Section 4(4), prohibits retaliation against employees who oppose discriminatory practices.

Anti-Retaliation Provision: It is unlawful for any person to coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected by chapter 151B, or to discharge, expel, or otherwise discriminate against any person because that person has opposed any practices forbidden under this chapter or has filed a complaint, testified, or assisted in any proceeding under section 5.

Administrative Exhaustion: A complaint must be filed with the Massachusetts Commission Against Discrimination (MCAD) within 300 days of the alleged discriminatory or retaliatory act. Mass. Gen. Laws ch. 151B, Section 5.

Remedies under Ch. 151B:
- Reinstatement
- Back pay with interest
- Compensatory damages for emotional distress
- Punitive damages (in cases of knowing and willful conduct)
- Attorney's fees and costs
- Injunctive relief

C. Common Law Wrongful Discharge

Massachusetts recognizes a public policy exception to at-will employment. An employee terminated in violation of a well-defined public policy may bring a common law wrongful discharge claim.

Key Case Law:
- DeRose v. Putnam Mgmt. Co., 398 Mass. 205 (1986) (recognizing public policy exception)
- Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145 (1989) (protecting employees who report illegal conduct)
- Mello v. Stop & Shop Cos., 402 Mass. 555 (1988) (defining scope of public policy exception)

Statute of Limitations: Three (3) years. Mass. Gen. Laws ch. 260, Section 2A.

D. Specific Whistleblower Protections

Massachusetts provides additional whistleblower protections in specific contexts:

1. Healthcare Workers: Mass. Gen. Laws ch. 111, Section 72O (protecting healthcare workers who report patient safety concerns)

2. False Claims Act: Mass. Gen. Laws ch. 12, Section 5J (protecting qui tam relators)

3. Public Employees: Mass. Gen. Laws ch. 149, Section 185 applies to public employees

4. Criminal Justice Personnel: Mass. Gen. Laws ch. 41, Section 111F (protecting police officers)

II. NATURE OF THE PROTECTED ACTIVITY

Our client engaged in one or more forms of protected activity that triggered [Company Short Name]'s unlawful retaliation:

A. Type of Protected Activity

[Check all that apply]

Disclosure to Supervisor (Whistleblower Act)
- [ ] Reported violations of law to management in writing
- [ ] Reported violations of rules or regulations to supervisor
- [ ] Disclosed activity reasonably believed to be illegal

Disclosure to Public Body (Whistleblower Act)
- [ ] Reported violations to a government agency
- [ ] Provided information to investigators
- [ ] Testified before a public body

Refusal to Participate (Whistleblower Act)
- [ ] Refused to participate in illegal activity
- [ ] Objected to unlawful policy or practice
- [ ] Refused to falsify records or documents

Opposition to Discrimination/Harassment (Ch. 151B)
- [ ] Complained internally about discrimination based on [race / color / religious creed / national origin / sex / gender identity / sexual orientation / genetic information / ancestry / age / disability / military service]
- [ ] Complained internally about harassment or hostile work environment
- [ ] Reported discrimination or harassment to human resources
- [ ] Filed a formal internal complaint or grievance

Participation in Discrimination Proceedings (Ch. 151B)
- [ ] Filed a Charge of Discrimination with MCAD or EEOC
- [ ] Participated in an MCAD investigation
- [ ] Testified or provided information in a discrimination proceeding
- [ ] Served as a witness in a co-worker's discrimination case

Other Protected Activity
- [ ] Filed a workers' compensation claim
- [ ] Reported violations under the Massachusetts False Claims Act
- [ ] Engaged in concerted activity protected by the NLRA
- [ ] [Other: describe]

B. Timeline of Protected Activity

C. Detailed Narrative

On [Date], our client [describe the protected activity in detail]:

[Provide comprehensive narrative including:
- What our client observed, learned, or experienced that prompted the protected activity
- The specific concerns raised or actions taken
- To whom the concerns were raised (names, titles)
- The manner of reporting (verbal, written, formal complaint)
- Any response received from management or HR
- Any instructions given to our client regarding the matter
- Any witnesses to the protected activity]

Our client's [complaint / report / testimony / action] was made in good faith and based on a reasonable belief that [the conduct complained of was unlawful / the information reported was accurate / the activity opposed was illegal].

III. THE RETALIATORY CONDUCT

A. Adverse Employment Actions

Following our client's protected activity, [Company Short Name] subjected [him/her/them] to the following retaliatory adverse employment actions:

[Check all applicable actions and provide details]

Termination/Constructive Discharge
- [ ] Our client was terminated on [Date]
- [ ] Our client was forced to resign due to intolerable conditions on [Date]

Demotion/Reassignment
- [ ] Demoted from [Former Position] to [New Position] on [Date]
- [ ] Reassigned to less desirable duties/location/shift on [Date]
- [ ] Stripped of [responsibilities / authority / direct reports] on [Date]

Compensation Reductions
- [ ] Salary reduced from $[Amount] to $[Amount] on [Date]
- [ ] Bonus denied or reduced on [Date]
- [ ] Hours reduced from [X] to [X] per week on [Date]

Performance/Discipline
- [ ] Received negative performance review on [Date] (previously had positive reviews)
- [ ] Placed on performance improvement plan (PIP) on [Date]
- [ ] Received written warning on [Date] for [pretextual reason]
- [ ] Suspended [with/without] pay from [Date] to [Date]

Hostile Treatment/Exclusion
- [ ] Excluded from meetings, communications, or decisions
- [ ] Subjected to increased scrutiny and micromanagement
- [ ] Isolated from coworkers or ostracized
- [ ] Given impossible tasks or set up to fail

Other Adverse Actions
- [ ] Denied promotion to [Position] on [Date]
- [ ] Negative reference provided to prospective employer
- [ ] [Other: describe]

B. Timeline of Retaliation

C. Evidence of Causal Connection

The causal connection between our client's protected activity and the adverse actions is demonstrated by:

1. Temporal Proximity

The adverse actions began just [X days/weeks] after our client's protected activity. Massachusetts courts recognize that close temporal proximity between protected activity and adverse action supports an inference of causation. See Mole v. Univ. of Mass., 442 Mass. 582, 591-92 (2004).

2. Knowledge

The decision-makers who took adverse action against our client had knowledge of [his/her/their] protected activity.

3. Pattern of Antagonism

Following the protected activity, our client experienced a sudden shift in treatment from positive to hostile.

4. Pretext

The reasons offered by [Company Short Name] for the adverse actions are pretextual.

IV. LEGAL CLAIMS

A. Massachusetts Whistleblower Protection Act

Mass. Gen. Laws ch. 149, Section 185

Our client is entitled to protection under the Whistleblower Protection Act because:

[Select applicable theory]

• [ ] Disclosure Theory: Our client disclosed or threatened to disclose to a supervisor or public body an activity, policy, or practice that [he/she/they] reasonably believed violated a law, rule, or regulation.

• [ ] Testimony Theory: Our client provided information to or testified before a public body conducting an investigation, hearing, or inquiry into a violation of law.

• [ ] Refusal Theory: Our client objected to or refused to participate in an activity, policy, or practice that [he/she/they] reasonably believed violated a law.

The law, rule, or regulation at issue is [cite specific Massachusetts statute, regulation, or constitutional provision].

Treble Damages: Because the employer's conduct was willful, our client is entitled to treble damages under Mass. Gen. Laws ch. 149, Section 185(d).

B. Massachusetts Fair Employment Practices Act - Retaliation

Mass. Gen. Laws ch. 151B, Section 4(4)

The Massachusetts Fair Employment Practices Act prohibits retaliation against employees who oppose discriminatory practices or participate in MCAD proceedings.

Our client [opposed discrimination / filed a complaint / testified / participated in an investigation] and suffered retaliation as a result.

See Abramian v. President & Fellows of Harvard Coll., 432 Mass. 107 (2000) (discussing retaliation claims under Ch. 151B).

C. Common Law Wrongful Discharge

Our client's termination violated the well-established public policy of Massachusetts as expressed in [cite specific statute or constitutional provision].

See DeRose v. Putnam Mgmt. Co., 398 Mass. 205 (1986).

D. Federal Claims (If Applicable)

[Include if federal claims are being asserted alongside Massachusetts claims]

• [ ] Title VII Anti-Retaliation, 42 U.S.C. Section 2000e-3(a)
• [ ] 42 U.S.C. Section 1981 (Race-Based Retaliation)
• [ ] ADA Anti-Retaliation, 42 U.S.C. Section 12203
• [ ] ADEA Anti-Retaliation, 29 U.S.C. Section 623(d)
• [ ] FLSA Anti-Retaliation, 29 U.S.C. Section 215(a)(3)

V. DAMAGES

A. Economic Damages

1. Lost Wages (Back Pay)

2. Lost Benefits

3. Front Pay

B. Compensatory Damages

For emotional distress and other non-economic harm:

• [Describe emotional impact]
• [Describe physical manifestations]
• [Describe impact on daily life]

Compensatory damages: $[Amount]

C. Treble Damages (Whistleblower Act)

Under Mass. Gen. Laws ch. 149, Section 185(d), because the employer's violation was willful:

Treble damages: $[Amount] x 3 = $[Amount]

D. Punitive Damages (Ch. 151B)

For knowing and willful violations of Ch. 151B:

Punitive damages: $[Amount]

E. Interest

Pre-judgment interest as provided by Mass. Gen. Laws ch. 231, Section 6B.

F. Attorney's Fees and Costs

Massachusetts law provides for recovery of reasonable attorney's fees in employment retaliation cases.

Estimated fees through trial: $[Amount]
Estimated costs: $[Amount]

G. Summary of Damages

VI. SETTLEMENT DEMAND

Based on the foregoing, we demand that [Company Short Name] pay $[Settlement Demand Amount] in full and final settlement of all claims arising from the unlawful retaliation against our client.

Settlement Terms

In addition to the monetary payment, settlement must include:

• [ ] Neutral Reference: [Company Short Name] will provide only dates of employment and final position
• [ ] Personnel File: Expungement of all documents related to the pretextual discipline and termination
• [ ] Non-Disparagement: Mutual non-disparagement provisions
• [ ] Confidentiality: Subject to negotiation
• [ ] Unemployment: [Company Short Name] will not contest unemployment benefits

VII. RESPONSE DEADLINE

Please respond to this demand in writing within fourteen (14) calendar days of receipt, no later than [Response Deadline Date].

Critical Deadlines:
- Whistleblower Act statute of limitations (2 years): [Date]
- MCAD 300-day filing deadline: [Date]
- EEOC filing deadline (if applicable): [Date]

If we do not receive a satisfactory response, we will file suit in [Massachusetts Superior Court, [County] County] or [United States District Court, District of Massachusetts] asserting:

1. Violation of the Massachusetts Whistleblower Protection Act, Mass. Gen. Laws ch. 149, Section 185
2. Retaliation in violation of Mass. Gen. Laws ch. 151B, Section 4(4) [if applicable]
3. Common law wrongful discharge in violation of public policy
4. [Additional claims as applicable]

VIII. DOCUMENT PRESERVATION

This letter constitutes formal notice of litigation. [Company Short Name] must immediately implement a litigation hold to preserve all documents and ESI relevant to our client's employment, the protected activity, and all adverse actions.

Spoliation of evidence may result in sanctions and adverse inferences under Massachusetts law.

IX. CONFIDENTIALITY

This letter is a confidential settlement communication protected by Massachusetts Rule of Evidence 408 and applicable state law.

We are prepared to discuss resolution of this matter at your earliest convenience. Please contact me to arrange a settlement conference.

Sincerely,

[Attorney Name]
[Title]
[Firm Name]

[Attorney Signature Block]

Enclosures:
- [ ] MCAD Complaint (if applicable)
- [ ] EEOC Right to Sue Notice (if applicable)
- [ ] Authorization to Represent

cc: [Client Name] (via email)
[File]

MASSACHUSETTS-SPECIFIC PRACTICE NOTES

Internal Reporting Requirement: The Whistleblower Protection Act generally requires that employees first report the alleged violation to a supervisor in writing and give the employer a reasonable opportunity to correct the activity before disclosing to a public body. However, this requirement does not apply if: (1) the employee has specific reason to believe reporting to a supervisor would not result in corrective action; (2) the employee reasonably fears physical harm; or (3) the situation is an emergency. Mass. Gen. Laws ch. 149, Section 185(c).

Treble Damages: The Whistleblower Protection Act provides for treble damages when the employer's conduct is willful. This is a significant enhancement beyond compensatory damages and should be emphasized in demand letters.

MCAD vs. Court: For Ch. 151B claims, plaintiffs may file directly in court after obtaining a Right to Sue letter from MCAD, or they may proceed with the MCAD administrative process. Consider strategic advantages of each forum.

At-Will Modification: Massachusetts remains an at-will employment state, but the public policy exception is well-established and courts have been receptive to whistleblower claims.

Broad Protected Class Coverage: Massachusetts Ch. 151B protects a broader range of characteristics than federal law, including gender identity and genetic information.