MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Ylber Berisha, filed a complaint in the Superior Court alleging that the town of Sandwich (town), violated the Massachusetts whistleblower statute, G. L. c. 149, § 185, by terminating his employment in retaliation for reporting safety concerns. The judge allowed the towns motion to dismiss on the ground of issue preclusion as an arbitrator had previously decided that the plaintiffs termination was for “good cause” and was not retaliatory. The plaintiff appeals.
2
We affirm.
Background. According to the plaintiffs complaint, in November 2008, he was hired by the town as an employee in the department of public works (DPW). During this time, he served as a shop steward. In that role, he alleged, he reported a variety of health and safety violations, as well as the towns violation of the hour and pay provisions of the relevant collective bargaining agreement. The plaintiff alleged that the town then retaliated against him by reprimanding him for trivial infractions and subjecting him to false claims, including accusing him of breaking town property. The plaintiff further alleged that on several occasions, the town warned him of further retaliation if he continued to report violations of the law and public health and safety concerns. In November 2017, the town placed the plaintiff on paid administrative leave. In April 2018, the town terminated his employment.
In January 2020, the plaintiff filed suit alleging that the town retaliated against him in violation of G. L. c. 149, § 185. The town moved to dismiss the complaint on the ground that the plaintiffs sole claim was barred by issue preclusion. In support of its motion, the town submitted a September 2019 arbitration decision and award resolving a grievance brought by the plaintiffs union against the town as a result of the plaintiffs termination. The arbitrator concluded that the town had just cause to terminate the plaintiffs employment based on a November 2017 incident where the plaintiff deliberately operated a six-wheeled dump truck with a trailer in an unsafe and erratic manner in a DPW yard that was crowded with people, vehicles, buildings, and fuel tanks. The arbitrator noted that prior to this incident, the plaintiff was repeatedly advised to avoid workplace confrontations and was subject to progressive discipline, including a four-week suspension for “engaging in disruptive, violent, and confrontational behavior.”
With respect to the plaintiffs claim that he was terminated in retaliation for his reports of workplace safety concerns, the arbitrator explained that the town hired an outside investigator to review this allegation. After an extensive investigation, the investigator concluded that the town had adequately addressed the sole safety concern raised by the plaintiff. Relying on the results of that investigation, the arbitrator expressly found that “the [t]own did not discriminate or retaliate against [the plaintiff] for raising safety [concerns] when he was a [u]nion steward.”
After a hearing, a Superior Court judge concluded that issue preclusion barred the plaintiffs claim because the arbitrator already decided that the town did not retaliate against the plaintiff and that determination was essential to the arbitrators ultimate finding that the termination was for just cause. As a result, the judge explained, the plaintiff was precluded from establishing an element of his claim: a causal connection between his protected activity (reporting workplace safety concerns), and the adverse employment action (his termination).
Discussion. The plaintiff contends that issue preclusion does not apply because he was not provided with an opportunity to challenge the outside investigators report during arbitration. Specifically, he asserts that he was “strictly forbidden” by union counsel from raising issues beyond the November 2017 incident to the arbitrator, he was never provided with the outside investigators report, despite requesting a copy from his union, and he was not told that he could or should object to the outside investigators report during arbitration.
The plaintiffs argument that he was precluded from challenging the outside investigators report during arbitration is raised for the first time on appeal and relies on facts outside of the record and never presented to the Superior Court judge. Indeed, the judge explicitly noted that the plaintiff made “no factual averment that he was in any way precluded during arbitration from opposing or impeaching the independent investigators report.” Because the plaintiff did not raise these arguments before the Superior Court judge, we cannot consider them here. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006) (“An issue not raised or argued below may not be argued for the first time on appeal” [citation omitted]).
Judgment affirmed.
FOOTNOTES
2
. The plaintiff was represented by counsel in the Superior Court, but proceeds pro se on this appeal.