Dirrane v. Brookline Police Department

           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


                                   -3-
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


                               -4-
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.

                                      -5-
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


                                     -6-
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


                                -7-
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).


                                   -8-
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,


                               -9-
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


                                        -10-
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).

                                  -11-
                 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).

                                           -12-
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


                                    -13-
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).




                               -14-
           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.


                                   -15-
§   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.


                                  -16-
           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


                                       -17-
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.




                                     -18-
                                    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


                                        -19-
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


                                 -20-
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


                               -21-
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.




                                     -22-