No. 96-2618CCommonwealth of Massachusetts Superior Court CIVIL ACTION SUFFOLK, ss.
January 30, 1997
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT WINGATE’S MOTION TO DISMISS COUNT V
INTRODUCTION/BACKGROUND
This opinion arises solely from Count V of a complaint filed by the plaintiff on May 13, 1996. In this count the plaintiff alleges that was discharged from employment by defendant Wingate in retaliation for his having reported safety violations by his former employer, CMJ Management, to the Occupational Safety and Health Act (“OSHA”) Division of the Department of Labor. The plaintiff claims that his termination by Wingate was in violation of public policy as embodied in OSHA and Massachusetts law.
Defendant Wingate filed a motion to dismiss pursuant to Mass.R.Civ.P. 12 (b) (6) which was heard on December 5, 1996. In support of their motion, defendant Wingate argues that Massachusetts bars a common law action for wrongful discharge based on public policy when a statutory remedy is available to the plaintiff. Wingate asserts that the plaintiff’s claim is therefore precluded by OSHA, which provides the plaintiff with an administrative remedy.[1]