Employment litigation example: a wrongful termination and whistleblower case out of Plymouth County

A 2013 lawsuit filed by a former high level employee of the Plymouth County District Attorney's Office recently settled and made it into the news. The case provides yet another example of how an employment law case can play out, so I wanted to write up some of the particular facts here for those employees who are looking to understand how employment litigation works.

A former Assistant District Attorney (ADA) was fired in September 2012, allegedly just days after trying a murder case with the jury reaching a guilty verdict. The ADA filed a lawsuit alleging that he had been fired because, among other reasons, he had stopped contributing to the District Attorney (DA)'s political campaigns and he had repeatedly raised concerns to higher-ups about the treatment of certain witnesses.

I will review the legal claims themselves below. But first, some nuts and bolts. The case was filed in November 2013 and just settled now, four years later. The docket suggests that there were attempts at mediation along with many filings and various attempts to dismiss the case. There were at least two judicial opinions written in response to those motions to dismiss.

In other words, the case was fairly active for four years. Massachusetts Lawyers Weekly reports that the case settled for $150,000 to the former ADA, as well as retroactive reinstatement back to his date of termination for purposes of his state pension benefits. The settlement also includes payment of nearly $100,000 for the ADA's attorneys' fees.

Legal Claims

The ADA brought a number of claims, some of which, as of March 30, 2017, were allowed to proceed to a jury, some of which were dismissed. They include claims for violation of the Massachusetts Civil Rights Act; 42 U.S.C. § 1983; tortious interference with an advantageous contractual, business, or employment relationship; wrongful termination in violation of public policy; and violation of the Massachusetts Whistleblower Act. There were a number of different actors involved in the events underlying the lawsuit, so the claims are pressed against each of the relevant actors.

To begin a review of the claims, the Massachusetts Civil Rights Act (“MCRA”) provides a remedy for any "person whose exercise or enjoyment of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, has been interfered with, or attempted to be interfered with [by any person ... by threats, intimidation or coercion].’”

Thus, one critical component of the claim is sufficient evidence of threats, intimidation or coercion.

The ADA was similar to the vast majority of employees out there in the sense that he served as an at-will employee. Generally, employers' threats to terminate the employment of at-will employees are not actionable because these employees simply does not possess a contractual right to maintain their positions. That is, after all, what is at the heart of what it means to serve at-will. What it means for purposes of this Massachusetts Civil Rights Act claim is that termination of an at-will employee alone does not amount to actionable coercion. Without more then, the claim was dismissed.

The next claim -- brought under the federal statute, 42 U.S.C. § 1983 -- alleged that certain individuals discriminated against the ADA because he did not contribute to or participate in the District Attorney's 2010 run for office.

For such a claim, an employee must first present evidence to show that the plaintiff-employee and the defendant-employer belong to opposing political affiliations; the defendant has knowledge of the plaintiff’s affiliation; a challenged employment action took place; and political affiliation was a substantial or motivating factor behind it.

If those elements have been demonstrated, a defendant-employer can then try to show that it would have taken the same action regardless of the plaintiff-employee's protected actions.

Here, again, the ADA alleged that he was fired because he did not contribute to or support the DA's political campaign. For evidence, he pointed to notes maintained by an individual at the DA's Office and given to the DA himself, suggesting that during the campaign, the ADA did "nothing" for the DA, that "everyone" knew it, that it was believed it had "sent a strong message to the staff," and even "undermined" the DA. And indeed, at the close of the campaign, some of the ADA's informal roles were removed. Additional duties were removed about a year later.

The court concluded the ADA had produced enough evidence that a jury could find that his failure to participate in the DA's campaign was a substantial factor in the DA's hostility toward the ADA. This claim was deemed allowed to be heard by a jury and was not dismissed.

The next claim for tortious interference with an advantageous contractual, business, or employment relationship, requires evidence upon which a jury could find that the ADA had an advantageous relationship with a third party (a current employment relationship, for example); the defendant-individual knowingly induced a breaking of the relationship; the defendant-individual's interference with the relationship, in addition to being intentional, was improper in motive or means; and the plaintiff was harmed by the defendant’s actions. When the defendant-individual is an official of the employer and acting in the scope of his or her employment, the plaintiff must prove that the defendant acted with a spiteful, malignant purpose, unrelated to the legitimate interest of the employer.

The judge looked to alleged statements made by one high level official, recommending "several times" that the DA fire the ADA because he had stopped contributing to the campaign. The judge concluded that a jury could find these statements were made with actual malice unrelated to the legitimate interests of the DA's Office. Therefore, this claim could proceed to a jury.

With respect to the wrongful termination in violation of public policy claim, resting particularly on the ADA's lack of political support as the reason for his termination, the judge concluded because a reasonable juror could accept the ADA's view, this claim too could head to a jury.

Lastly, the ADA alleged the DA’s Office violated the Massachusetts Whistleblower Act. That law applies to public employers and provides, among other things, "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, or which the employee reasonably believes poses a risk to public health, safety or the environment."

The public employee must demonstrate that he engaged in protected activity -- usually the filing of some sort of complaint -- and that his participation in that activity played a substantial or motivating part in the retaliatory action. The employer then, of course, would have a right to rebut the employee's theory by showing that there was a legitimate, nonretaliatory reason for the action against the employee.

This whistleblower/retaliation claim was not so much premised on the lack of political support in the DA's campaign but on the belief that the ADA's multiple complaints about the Office's handling of certain witnesses was a substantial or motivating factor in his termination. Similar to the reasons for the 1983 claim, the wrongful termination claim, and the tortious interference claim, the whistleblower claim was also allowed to proceed.

Approximately eight months after the decision permitting some claims to proceed to a jury and dismissing other claims, the case settled.

Some Quick Takeaways

• Four years from filing of suit to resolution;

• Settlement of $150,000 plus retroactive reinstatement for pension benefits purposes plus attorney's fees.

With all of the above said, as I often note, employment cases are very fact specific. Sometimes small differences in facts can change the disposition of a case. While the above serves as an example of how one particular employment case played out in court and ultimately settled before reaching a jury, it is just an example. It always must be understood that cases proceed on a case by case basis.

Doorways Employment Law is a virtual employment law practice, leveraging the power of technology to connect with clients in the most efficient and convenient way possible. It specializes in employment law counseling, strategic advice and representation to individuals and businesses across Massachusetts, including on issues relating to wrongful termination, retaliation, and whistleblowing. Contact Doorways Employment Law for an employment law consultation.