United States Court of Appeals
For the First Circuit
No. 01-2523
No. 01-2613
JOHN B. DIRRANE,
Plaintiff, Appellant/Cross-Appellee,
v.
THE BROOKLINE POLICE DEPARTMENT; TOWN OF BROOKLINE;
and DANIEL C. O'LEARY, in his official capacity
as Chief of Police,
Defendants, Appellees,
_____________
DANIEL C. O'LEARY, in his individual capacity;
THOMAS KEAVENEY; and THOMAS HEAVEY,
Defendants, Appellees/Cross-Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Boudin, Chief Judge,
Gibson,* Senior Circuit Judge,
and Torruella, Circuit Judge.
Eric S. Maxwell for plaintiff.
*
Honorable John R. Gibson, of the Eighth Circuit, sitting by
designation.
Lisa M. Asiaf with whom Paul V. Kelly and Kelly, Libby &
Hoopes, P.C. were on brief for defendants, appellees, cross-
appellants Daniel C. O'Leary, Thomas Keaveney and Thomas Heavey.
David Lee Turner, Office of Town Counsel, with whom Jennifer
Dopazo was on brief for defendants, appellees the Brookline Police
Department, the Town of Brookline and Daniel C. O'Leary.
December 31, 2002
BOUDIN, Chief Judge. This case began when John Dirrane,
a police officer in the Brookline Police Department, brought a
civil action to recover for alleged retaliation against him for
reporting abuses in the police force, primarily within his own
unit. Certain of the individual defendants counterclaimed for
defamation. The district court ultimately dismissed all claims--
some on a motion to dismiss and some on summary judgment--and both
sides have appealed.
Dirrane joined the Brookline police force in 1980 and, in
1986, joined the Identification Unit ("ID Unit") of the Detective
Division. The ID Unit deals with photographs, fingerprints, and
the like. Dirrane's immediate supervisor was Sergeant Thomas
Heavey. In the early years, the head of the Detective Division was
Captain Hayes; Hayes was succeeded by Captain Thomas Keaveney. The
Chief of Police in Brookline was Howard Brackett until 1995 and
then Daniel O'Leary.
According to Dirrane, work increased in the ID Unit
beginning in the early 1990s and thereafter Heavey and the other
officer in the unit engaged in a continuing array of abuses.
Dirrane complained repeatedly to Heavey and, when rebuffed, took
his complaints on a number of occasions to Keaveney, Hayes, and
O'Leary. Dirrane's complaints ranged from minor to quite serious.
His initial complaints, which started in 1992, were relatively
minor; he claimed that certain officers were playing cards during
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work hours, that his supervisors had improperly waived firearm
licensing requirements, and that the accounting safeguards in his
unit were inadequate. He then started to make more serious
allegations charging Heavey and the other officer in the unit with
falsifying fingerprint reports and destroying fingerprint evidence.
He alleged that Heavey instructed him to falsify reports as well.
He also continued to make less serious complaints, objecting to the
manner in which evidence was stored and logged in the unit.
In Dirrane's view, these senior figures promised to look
into matters but did very little. By contrast, according to the
defense, Keaveney and O'Leary (Hayes is not a defendant and his
role can be ignored) concluded that much of what Dirrane was
alleging was wrong or could not be substantiated, that Dirrane was
a continuing cause of friction and disruption, that he needed to
talk with a department psychologist, and (ultimately) that he ought
to work somewhere else in the department.
In March or April 1997, Keaveney changed Dirrane's work
hours from 6 a.m. to 2 p.m. to a more normal schedule (8 a.m. to 4
p.m.) but one that Dirrane said conflicted with his wife's schedule
and their need to care for their child. Under some stress, Dirrane
then asked for a transfer to the Patrol Division or to another
detective unit. On April 17, Internal Affairs officers asked
Dirrane for his office keys and his firearm, and on April 18,
O'Leary and Keaveney told Dirrane that he was moving to the Patrol
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Division. Because of the stress, he was given ten-days leave
before reporting.
During the next several months Dirrane received some
psychological counseling while serving in the Patrol Division, and
his firearm was returned to him about a year later. Dirrane
continued to earn his ordinary police-officer income but claims to
have suffered severe and permanent emotional trauma as a result of
his overall experience. On April 7, 1999, just short of two years
after his transfer, Dirrane brought the present action in state
court.
In relevant part, Dirrane's complaint alleged a violation
of the Massachusetts whistleblower statute (count II), Mass. Gen.
Laws ch. 149, § 185 (2000), and a violation of his First Amendment
rights subject to redress under 42 U.S.C. § 1983 (2000) (count
III).1 The pertinent remaining defendants are the Town of
Brookline, Chief O'Leary and Captain Keaveney. Although Sergeant
Heavey was also named, he did not cause the alleged retaliation
complained of and on appeal Dirrane makes no effort to implicate
him. The individual defendants counterclaimed against Dirrane for
defamation based on statements Dirrane made to the press about the
1
Count I set forth a comparable civil rights claim under state
law and count IV claimed a civil conspiracy under state law.
Dirrane does not distinguish between counts I and III; and he has
not appealed from the district court's later dismissal of count IV
for failure to state a claim.
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matter. The defense removed the case to federal district court
pursuant to 28 U.S.C. § 1441 (2000).
After removal to federal court and discovery, the
district court in two successive orders dismissed all claims on
both sides. The section 1983 damage claims against the individual
officers were dismissed on qualified immunity grounds. As to the
town, the court found no evidence whatsoever of any policy or
custom that could warrant municipal liability under the Monell
doctrine. Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978).
The court also declined to order injunctive relief against the town
or Chief O'Leary.
The district court dismissed the state whistleblower
claim because concededly Dirrane had not provided the "written
notice" that the court found to be required by the statute. The
court also said, in the alternative, that neither the state nor the
federal claims could succeed because Dirrane had himself requested
the transfer. Finally, the court dismissed the counterclaims for
defamation on the ground that the "malice" requirement could not be
met. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).
Cross-appeals followed.
1. We begin with Dirrane's attack on the dismissal of
his First Amendment claims for damages against the individual
officers. As to these claims, the district court assumed the truth
of the allegations in the complaint; but it concluded that Dirrane
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could identify no doctrine or precedent "clearly" establishing that
the defendants' conduct under the circumstances alleged violated
his constitutional rights. Accordingly, it held that the officers
were protected against damages claims by the doctrine of qualified
immunity. Our review on this issue is de novo. Carroll v. Xerox
Corp., 294 F.2d 231, 237 (1st Cir. 2002).
Some First Amendment issues are governed by clear-cut
rules, even though there may be close cases on the facts. E.g.,
Branti v. Finkel, 445 U.S. 507, 517 (1980) (political allegiance as
a permissible job qualification for policymakers). But for alleged
"disruptive speech" by government whistleblowers, the Supreme Court
has adopted only a balancing test: the whistleblower is entitled
to protection against retaliation if his speech interests, along
with the public's interest in hearing the speech, outweigh the
government's need to limit distractions, conserve resources, and
maintain esprit in the workplace. Pickering v. Bd. of Educ., 391
U.S. 563, 568 (1968); Connick v. Myers, 461 U.S. 138, 150-51
(1983); Rankin v. McPherson, 483 U.S. 378, 388 (1987).
This uncertain standard implicates the companion legal
doctrine of qualified immunity. Under section 1983, a government
employee is immune to damages where a reasonable official could
believe (the test is objective), albeit mistakenly, that his
conduct did not violate the First Amendment. Harlow v. Fitzgerald,
457 U.S. 800, 818-19 (1982). Immunity exists even where the
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abstract "right" invoked by the plaintiff is well-established, so
long as the official could reasonably have believed "on the facts"
that no violation existed. See Suboh v. Dist. Attorney's Office,
298 F.3d 81, 90 (1st Cir. 2002); Swain v. Spinney, 117 F.3d 1, 9-10
(1st Cir. 1997).
In a decision issued after the district court ruled, the
Supreme Court has instructed us to start not with the immunity
issue but with the question whether the facts as alleged make out
a violation of the First Amendment. Saucier v. Katz, 533 U.S. 194,
201 (2001).2 This makes sense where the issue is whether some
abstract right exists; otherwise the "rights" issue may never be
resolved. Id. But it is an uncomfortable exercise where, as here,
the answer whether there was a violation may depend on a
kaleidoscope of facts not yet fully developed. It may be that
Saucier was not strictly intended to cover the latter case.
Nevertheless, assuming arguendo that Saucier applies, we
agree with Dirrane that a colorable constitutional claim would be
made out if everything asserted by Dirrane in his very lengthy
complaint were established as true and--perhaps more importantly--
2
On a motion to dismiss based on the complaint, the facts as
alleged in the complaint control, with minor qualifications, e.g.,
Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 17 (1st Cir.
1998) (court can consider undisputed documents alleged or
referenced in the complaint); but if the immunity issue is
presented on a motion for summary judgment, facts not reasonably
contestable may be part of the landscape. See C.K. Smith & Co. v.
Motiva Enters. LLC, 269 F.3d 70, 73 (1st Cir. 2001).
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defendants had no other facts with which to justify their actions.
It is difficult to be more definitive because of a lack of case
law; usually, the plaintiff is derailed before the court reaches
the merits question because the plaintiff was a policymaker who
could be fired or demoted because of his speech, or because pre-
Saucier qualified immunity mooted the merits question.
In all events, the constitutional standard already set
forth requires a balancing of the considerations on both sides.
Those in Dirrane's favor are fairly easy to state. Some of the
conduct he charged is serious (such as destroying fingerprint
evidence and falsifying reports) and allegedly continued over
several years. He asserts that his supervisors listened to him but
did not make any serious effort to investigate his allegations and
that he was then transferred in retaliation for his complaints. In
sum, the allegations have the structure of a classic cover-up in
which the whistleblower suffered an adverse change in employment
"because" of his speech on a public issue.
As one adds flesh to the bones, the situation becomes
less clear-cut. On the department's side, it had some basis for
distrusting Dirrane: he made one complaint after another on a wide
range of topics, some trivial, and others so serious as perhaps to
be difficult to credit. Certainly, a responsible department head
or chief would investigate (and Dirrane's allegation is that
nothing much was done). Still, his superiors could have concluded,
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even if mistakenly so, that they were dealing with someone who
would say anything to get attention and who would make up more
serious allegations when less serious ones failed to draw
attention.
Further, no action was taken against Dirrane simply for
making complaints. It was only after a considerable period
(Dirrane's complaints began in 1992; he was not transferred until
1997) that the department finally took action; by this time,
Dirrane's accusations had to have caused serious disruption in his
three-person unit, given that Dirrane had accused his supervisor
and co-worker of a multitude of offenses over a long period.
Dirrane admitted this was so. Even then, Dirrane was not demoted
or fired; he was simply transferred to another unit, one that he
had raised as an alternative position.
Still, we conclude that Dirrane's version of facts makes
out a colorable First Amendment violation. Whatever the doubts
about his judgment, Dirrane had made several extremely serious and
specific charges of criminal misconduct which (on his version of
events) the department did not seriously investigate. Had an
investigation determined that the allegations were unfounded, the
disruption they generated would have amply justified the modest
impact of Dirrane's transfer upon his (and the public's interest
in) his speech; but to transfer him without any serious
investigation cannot be defended under the Supreme Court's
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balancing-of-interests test. Cf. Roth v. Veteran's Admin., 856
F.2d 1401, 1407-08 (9th Cir. 1988).
However, on qualified immunity, the outcome is different.
This is not the archetypal case of an employee who blows the
whistle on government misdeeds and is fired. The serious charges
that Dirrane made were nestled in a morass of complaints. The
department had some basis for distrusting Dirrane's judgment. The
department did not try to fire him; it just moved him to a position
even he described as a second choice. Here, as is common where
there is a lack of precedent,3 this is not a case in which a
reasonable officer must have known that he was acting
unconstitutionally.
2. The district court also rejected Dirrane's claim for
damages against the town which, under Monell, cannot be based on
respondeat superior but requires independent liability based on an
unconstitutional policy or custom of the municipality itself. The
district court ruled that the town government, not the "weak chief"
of the police department, see Chief of Police v. Town of Westford,
313 N.E.2d 443, 445-46 (Mass. 1974), was the pertinent policymaker
for purposes of Monell and, on summary judgment, the court saw no
evidence of a wrongful policy existing at the town level.
3
E.g., Frazier v. Bailey, 957 F.2d 920, 931 (1st Cir. 1992);
accord Bartlett v. Fisher, 972 F.2d 911, 916 (8th Cir. 1992);
Rakovich v. Wade, 850 F.2d 1180, 1211-13 (7th Cir.) (en banc),
cert. denied, 488 U.S. 968 (1988).
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On appeal, Dirrane argues that Monell does not bar a
federal claim for prospective injunctive relief (as opposed to
damages) against the town. However, the Supreme Court, in imposing
the precondition of an unconstitutional "official municipal
policy," was directly addressing "monetary, declaratory, or
injunctive relief." Monell, 436 U.S. at 690 (emphasis added).
Thus, the Ninth Circuit's contrary position in Chaloux v. Killeen,
886 F.2d 247, 250 (9th Cir. 1989), is on its face at odds with
Monell itself. Several other circuits have assumed that the
Chaloux interpretation is incorrect.4
Dirrane also makes the more limited argument that Monell
does not apply where the plaintiff is seeking prospective
injunctive relief against a local official rather than the town.
The wrinkle here is that Dirrane has insisted that he seeks
injunctive relief against the police chief in his official rather
than his personal capacity. Monell says that a suit against an
officer in his official capacity is "only another way of pleading
an action against an entity of which an officer is an agent."
Monell, 436 U.S. at 690 n.55; see also Will v. Mich. Dep't. of
4
Gernetzke v. Kenosha Unified Sch. Dist. No. 1, 274 F.3d 464,
468 (7th Cir. 2001) ("The predominant though not unanimous view is
that Monell's holding applies regardless of the nature of the
relief sought."), cert. denied, 122 S. Ct. 1606 (2002); Bannum,
Inc. v. City of Fort Lauderdale, 901 F.2d 989 (11th Cir.
1990)(applying Monell even though the plaintiff only sought
declaratory and injunctive relief); see also Los Angeles Police
Protective League v. Gates, 995 F.2d 1469, 1477-78 (9th Cir. 1993)
(Fletcher, J., concurring).
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State Police, 491 U.S. 59, 71 (1989) (a suit against a state
official in his official capacity "is not a suit against the
official but rather is a suit against the official's office").
Yet in the sovereign immunity context, the Supreme Court
has repeatedly said that an official who acts unconstitutionally
can be enjoined even though the state is immune from damages. E.g.,
Ex Parte Young, 209 U.S. 123, 159 (1908). While one might at first
suppose that these were injunctions against the official in his
personal capacity (based on the fiction that unconstitutional
action is not "official"), the Court has stated that the injunction
can be issued against the official in his official capacity. In
Will itself, 491 U.S. at 71 n.10 (1989), the Court said that "of
course a state official in his or her official capacity, when sued
for injunctive relief, would be a person under § 1983 because
official-capacity actions for prospective relief are not treated as
actions against the State." Accord Kentucky v. Graham, 473 U.S.
159, 167 n. 14 (1985).
Where the injunction does not implicate direct payments,
the difference between personal and official capacity is largely in
the details, (e.g., whether the injunction runs against a successor
in office), and none of the Court's seemingly inconsistent
locutions occurs in a case where it matters. However the Supreme
Court eventually resolves the tension in its pronouncements,
equitable relief would not be appropriate here. In his new
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position, Dirrane does not plausibly claim to be threatened with
retaliation. And reinstatement in the ID unit, not specifically
requested by Dirrane, would be a dubious remedy. See, e.g.,
Velazquez v. Figueroa-Gomez, 996 F.2d 425, 428-29 (1st Cir.), cert.
denied 510 U.S. 993 (1993); O'Donnell v. Yanchulis, 875 F.2d 1059,
1062-63 (3rd Cir. 1989).
3. This brings us to Dirrane's claim for damages against
the town based on the state whistleblower law. That statute,
reprinted in pertinent part in an appendix to this opinion, is
complicated and in certain respects unclear. But neither side has
asked for certification, and we have no intention of further
prolonging this litigation.
The Massachusetts statute gives a civil claim for damages
and equitable relief to an employee against a city or town (among
other public entities) that engages in a "retaliatory action"
against the employee "because" of defined protected conduct; this
conduct includes the employee's disclosure "to a supervisor or to
a public body" of activities that the employee reasonably believes
to constitute wrongdoing, a concept spelled out in generous terms.
Mass. Gen. Laws ch. 149, § 185(b). "Retaliatory action" is defined
to include "the discharge, suspension or demotion of an employee,
or other adverse employment action taken against an employee in the
terms and conditions of employment." Id. § 185(a)(5).
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Certainly some of the disclosures made by Dirrane to his
superiors concerned conduct, primarily that of Sergeant Heavey,
which (if it occurred) would have comprised wrongdoing within the
meaning of the statute. The district court gave two reasons for
dismissing the statutory claim. One is that Dirrane expressly
requested the transfer, the transfer being the primary conduct that
might constitute retaliation; the other is that Dirrane admittedly
did not give the written notice that the district court deemed the
statute to require.
Dirrane admits that he asked for the transfer but says
that he did so only because the new hours that had been fixed for
him in the ID Unit were impossible for him because of his child-
care duties. He argues that these hours were set in an effort to
coerce him into transferring. Whatever the reality, the record is
sufficiently muddled on this issue to debar summary judgment. It
is enough to note that in discovery both O'Leary and Keaveney
linked the transfer in some measure to Dirrane's continued
complaints.
The second ground is much more complicated. The statute
makes any civil claim by the employee contingent on giving the
employer "written notice" and "a reasonable opportunity to correct"
the wrongdoing before the employee reports the activity to a
"public body." Mass. Gen. Laws ch. 149, § 185(c)(1). "Public
body," as defined, includes the police department. Id.
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§ 185(a)(3). Because Dirrane reported the conduct to his
supervisors in the police department but never gave written notice,
the district court--reading the statute literally--deemed Dirrane's
claim barred.
Although the point can be debated and no one has cited a
Massachusetts case on point, we think this literal application of
the statute is at odds with its design and purpose. 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. Compare Mass. Gen. Laws ch. 149, § 185(a)(3)
with id. § 185(a)(4).
Patently, the purpose was to give the employer
unequivocal notice (i.e., in writing) and an opportunity to clean
up its own house before the matter was taken outside. But Dirrane
did not go outside before filing this lawsuit. His complaints were
to superiors within the department. It is happenstance, and
irrelevant to the obvious purpose of the written notice
requirement, that the department itself happens to be a "public
body" to which employees of other agencies might bring complaints
about wrongdoing of their own employers. In short, to treat
Dirrane's internal complaints as triggering the notice requirement
makes no sense.
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Alternatively, the town argues that the state court in
which Dirrane filed his lawsuit was a public body and thus he was
required to give written notice before filing suit. 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). In this
application, a literal reading does make sense: the written notice
requirement gives the employer one last chance to correct
wrongdoing before the employee goes public with his accusations.
Of course, on Dirrane's version of events, his oral
complaints were repeated and comprehensive and a written notice
would likely have produced no different result. Nor is there any
indication that written notice prior to suit would have resulted in
the department undoing the transfer. But the statute is
unqualified in its requirement and in this instance a hard and fast
rule does serve a rational purpose, namely, by avoiding
uncertainties about what might have happened if formal notice had
been given. Thus, we agree that the state whistleblower claim is
barred.
4. Little needs to be said about the defamation claims.
The counterclaiming defendants admit that under New York Times Co.
v. Sullivan, 376 U.S. 254, 279-80 (1964), they had to point to
evidence from which a jury could infer that Dirrane made false
statements knowing them to be false or with reckless disregard for
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their truth. The evidence to which defendants point in their
briefs to raise a factual issue is that some of the incidents
alleged by Dirrane were not recorded in his day-book and that Chief
O'Leary opined briefly in a deposition that he thought Dirrane knew
some of his statements were false.
These fragments amount to nothing. Yes, Dirrane said
that he tried to record all his complaints; but obviously a few
omissions, even coupled with one inconsistency between Dirrane's
elaborate record and his detailed oral complaints, are not real
proof of malice. As for Captain O'Leary's unexplained conclusion
that Dirrane "probably" did not believe some of his own
allegations, it is not even admissible evidence of malice, being an
"opinion" in no way helpful to the jury. See Fed. R. Evid. 701.
The judgment of the district court is affirmed. Each
side shall bear its own costs on this appeal. Mass. Gen. Laws
ch. 149, § 185.
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APPENDIX
Mass. Gen. Laws ch. 149, § 185. Retaliatory Action Against
Employees Prohibited; Conditions; Exceptions.
Retaliatory Action Against Employees Prohibited; Conditions;
Exceptions.
(a) As used in this section the following words shall have the
following meanings:--
(1) "Employee", any individual who performs services for and under
the control and direction of an employer for wages or other
remuneration.
(2) "Employer", 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.
(3) "Public body", (A) the United States Congress, any state
legislature, including the general court, or any popularly elected
local government body, or any member or employee thereof; (B) any
federal, state or local judiciary, or any member or employee
thereof, or any grand or petit jury; (C) any federal, state or
local regulatory, administrative or public agency or authority, or
instrumentality thereof; (D) any federal, state or local law
enforcement agency, prosecutorial office, or police or peace
officer; or (E) any division, board, bureau, office, committee or
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commission of any of the public bodies described in the above
paragraphs of this subsection.
(4) "Supervisor", any individual to whom an employer has given the
authority to direct and control the work performance of the
affected employee, who has authority to take corrective action
regarding the violation of the law, rule or regulation of which the
employee complains, or who has been designated by the employer on
the notice required under subsection (g).
(5) "Retaliatory action", the discharge, suspension or demotion of
an employee, or other adverse employment action taken against an
employee in the terms and conditions of employment.
(b) An employer shall not take any retaliatory action against an
employee because the employee does any of the following:
(1) Discloses, or threatens to disclose to a supervisor or to a
public body an activity, policy or practice of the employer, or of
another employer with whom the employee's employer has a business
relationship, 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;
(2) Provides information to, or testifies before, any public body
conducting an investigation, hearing or inquiry into any violation
of law, or a rule or regulation promulgated pursuant to law, or
activity, policy or practice which the employee reasonably believes
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poses a risk to public health, safety or the environment by the
employer, or by another employer with whom the employee's employer
has a business relationship; or
(3) Objects to, or refuses to participate in any activity, policy
or 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.
(c) (1) Except as provided in paragraph (2), the protection against
retaliatory action provided by subsection (b) (1) shall not apply
to an employee who makes a disclosure to a public body unless the
employee has brought the activity, policy or practice 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, 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.
(2) An employee is not required to comply with paragraph (1) if he:
(A) is reasonably certain that the activity, policy or practice is
known to one or more supervisors of the employer and the situation
is emergency in nature; (B) reasonably fears physical harm as a
result of the disclosure provided; or (C) makes the disclosure to
a public body as defined in clause (B) or (D) of the definition for
"public body" in subsection (a) for the purpose of providing
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evidence of what the employee reasonably believes to be a crime.
(d) Any employee or former employee aggrieved of a violation of
this section may, within two years, institute a civil action in the
superior court. Any party to said action shall be entitled to claim
a jury trial. All remedies available in common law tort actions
shall be available to prevailing plaintiffs. These remedies are in
addition to any legal or equitable relief provided herein. The
court may: (1) issue temporary restraining orders or preliminary or
permanent injunctions to restrain continued violation of this
section; (2) reinstate the employee to the same position held
before the retaliatory action, or to an equivalent position; (3)
reinstate full fringe benefits and seniority rights to the
employee; (4) compensate the employee for three times the lost
wages, benefits and other remuneration, and interest thereon; and
(5) order payment by the employer of reasonable costs, and
attorneys' fees.
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