Whistle blowing
Kahn v SUNY Health Center at Brooklyn, 288 AD2d 350
What is the whistle blower required to show in order to prevail? What is the targeted agency required to demonstrate in defending itself in a whistle blower case? These were among the issues considered by the Appellate Division when Mahmood Khan sued SUNY's Health Center at Brooklyn claiming it had violated Section 740 of the Labor Law.
In order to prevail in his Section 740 complaint, Kahn was required to plead and prove that the Health Center engaged in an activity, policy, or practice that constituted an actual violation of law, rule, or regulation. A critical factor in resolving this litigation concerned the nature of the proof required. The court said that an employee's good-faith reasonable belief that an actual violation of a law, rule, or regulation occurred is insufficient: he or she must show that there was a violation actually occurred.
Kahn had alleged that conditions in the Health Center's laboratories were unsafe due to poor air quality.
The Medical Center, however, produced affidavits and other proof demonstrating that during the period relevant to the Kahn's complaints of unsafe conditions, the Center's laboratories were not found to be in violation of any safety or health standards promulgated under the United States Occupational Safety and Health Act of 1970 or any regulations promulgated by the Department of Labor.
Accordingly, said the Appellate Division, the Health Center had come forward with sufficient admissible evidence to sustain its burden for granting its motion for summary judgment.
In contrast, said the court, Kahn failed to make the requisite factual showing to defeat the motion. He did not allege an actual violation of any specific law, rule, or regulation either in his complaint or his affidavit submitted in opposition to the defendant's motion for summary judgment.
The court rejected Kahn's “uncorroborated and unsubstantiated opinion that the laboratories were unsafe” holding that it amounted to no more than “a reasonable belief of a possible violation.” This, without proof, will not support a cause of action to recover damages under Labor Law Section 740.