Former T administrator will get to make case in court he was let go for exposing fraud, dangerous conditions

The Massachusetts Appeals Court ruled today that Stephen Trychon, let go from his MBTA job in 2013, is protected by the state whistleblower law and will get a chance to pursue his lawsuit alleging higher ups forced him out after he annoyed other, politically connected T officials and workers by exposing risky working conditions, possible contract fraud and dangerous track conditions that had gone unfixed for six years.

The decision reverses a Superior Court judge's ruling to dismiss the suit because the T had the right to lay Trychon off.

The appeals court, however, said that T officials - all the way up to acting T General Manager Jonathan Davis and state Transportation Secretary Richard Davey - had reason to want to squelch Trychon's repeated efforts to investigate problems with certain procurement contracts, to get certain T workers to wear protective eyewear and to get the T to fix dangerous subway tracks, and that he is entitled to press his claim under a law protecting whistleblowers from retaliation by employees, specifically, "disclosures (or threatened disclosures) to a supervisor of and objections to an employer's activity, policy, or practice that the employee reasonably believes violates the law or poses a risk for public health or safety." The court added:

One could reasonably infer that acting GM Davis did not appreciate Trychon's embarrassing disclosure of wrongdoing in a department that he personally had overseen, and that he wanted Trychon and his spotlight gone.

Trychon was director of system-wide maintenance and improvement when let go in 2013. Among the T officials with whom he allegedly feuded - Maintenance of Way Director Patrick Kineavy, whom the court notes is the brother of longtime Tom Menino aide Michael Kineavy. Trychon alleges that after he issued an order requiring some of Kineavy's workers to put on protective eyeware due to a high incidence of injuries, Kineavy refused to comply, allegedly going so far as to create 12 fake notices that workers were actually wearing the glasses.

According to the suit, at one point Kineavy threatened Trychon's assistant: "I am going to fix you once and for all -- and for good."

In August, 2012, [the assistant] sought in writing Kineavy's termination based upon Kineavy's verbal threat, failure to enforce the eyewear policy, fraudulent [time-card] reporting, and continued poor performance reviews. State Secretary of Transportation Richard Davey and acting GM Davis stepped in and created a new job for Kineavy with minimal responsibilities and better pay. They also switched Kineavy's reporting duties to Sean McCarthy, "an old South Boston buddy of [Kineavy]."

This, the court said, "plausibly suggested that [Kineavy and one of his assistants] had influence far higher than their subordinate positions in the organizational chart."

In short, for pleading purposes, the hostile acts and statements by Kineavy and [his aide], the unnatural protection afforded those individuals, and acting GM Davis's suppression of the official contract fraud investigation initiated because of Trychon permit a plausible inference that Trychon's protected activities played a substantial or motivating part in the decision to terminate him.

The court continued:

At the time of his discharge, Trychon's trajectory was on the rise. He had evidently proven himself to be an effective and dedicated public employee, saving taxpayers millions of dollars, identifying fraudulent contracts, and exposing alarming track conditions that posed a risk to public safety. He had been promoted twice, and the scope of his job responsibilities was expanding. Generally, unless adverse conditions require a different course of action, employers who follow sound business practice do not select employees with excellent performance records for termination. Likewise, employers who follow sound business practice do not ordinarily transfer, shield, or reward employees whose poor performance or wrongful acts warrant termination, as the MBTA allegedly did according to the complaint.

Trychon alleged adequate facts plausibly suggesting retaliatory animus harbored by MBTA management. The narrative of the complaint suggests a continuing pattern of opposition and hostility to Trychon, and to his mainstay Turcotte, over an extended period of time.