In Gavin v. Roxbury Community College, the Plaintiff, Thomas Gavin (Plaintiff), the Director of Facilities and Public Safety at Roxbury Community College (College), a public college in Massachusetts, served as the College’s primary security authority and compliance officer for the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act). Under the Clery Act colleges must “collect and disclose statistics for certain reported crimes, […] including sex offenses, […] to the U.S. Department of Education (DOE). (20 U.S.C. § 1092(f)(1)(5))

From 2003 – 2010, an unnamed student at the College repeatedly reported allegations that she had been sexually assaulted, on two occasions by two separate professors, to various administrative personnel, including, among others, the vice president of administration and finance (Finance VP), the human resources director (HR Director), and Plaintiff.

In 2010 the student reported the assaults to the HR Director but indicated she did not want human resources to pursue action. Later in 2010, Plaintiff asked the HR Director to identify crimes to be included in the Clery Act report and the HR Director responded there were “no reported crimes on record.” Plaintiff subsequently received copies of the student’s sexual assault complaints and after further inquiry, the HR Director indicated HR had received the complaints but taken no action. That same day, the Finance VP authorized a scholarship covering the student’s remaining fall tuition.

In 2011, Plaintiff disclosed the student’s complaints to the DOE and requested guidance on how to properly report under the Clery Act. DOE employees were unsure at the time. In 2013, Plaintiff reported the allegations to the State Auditor and advised them of the scholarship. The State Auditor notified the College’s Board and an investigation was ordered which concluded the allegations had not been properly reported.

In 2012, the College terminated Plaintiff, in part, for failure to properly report the students’ allegations. Plaintiff brought a complaint for retaliation claiming he had been wrongfully terminated for “being a whistleblower with respect to the College’s reporting duties under the Clery Act.” The College requested summary judgment on the whistleblower claim and Plaintiff cross-filed for partial summary judgment on the issue of whether he engaged in protected whistleblower activity. The court denied the College’s motion and ruled in favor of Plaintiff, indicating he had engaged in protected activity as a matter of law. A jury later issued a verdict in favor of Plaintiff on the whistleblower claim.

On Appeal, the Supreme Judicial Court of Massachusetts, examined whether Plaintiff’s reports to the DOE and State Auditor were protected activity under the state’s whistleblower act when Plaintiff had shared responsibility for completing the reports that were the subject of his whistleblower complaint. The court concluded that Plaintiff’s implication in the alleged illegal activity did not remove whistleblower protections. The court found Plaintiff had engaged in protected activity as a matter of law as violations of the Clery Act had “undisputedly occurred” and Plaintiff had raised objections based on his reasonable belief the employer had engaged in unlawful activity.

The court noted involvement in illegal activity is often how reporting employees become aware of potential violations. In discussing the purpose of whistleblower statutes, the court stated that excluding an employee from whistleblower protections when they are implicated in the employer’s unlawful conduct “would discourage the revelation of the wrongdoing […].”

This case highlights different statutory standards that may be applied to whistleblower claims. While the Massachusetts court recognized protections even where employees engage in the wrongdoing, Minnesota courts have not explicitly done so and may be more willing to consider an employee’s independent conduct and job duties when evaluating application of whistleblower protections. If you or your organization have questions regarding whistleblower protections, contact Wiley Reber Law, for legal advice that works.