July 28, 2016

The evolution of New York’s whistle blower laws protecting public officers and employees

The evolution of New York’s whistle blower laws protecting public officers and employees
Castro v City of New York, 2016 NY Slip Op 05615, Appellate Division, First Department

In his notice of claim dated November 17, 2012, Robert J. Castro alleged that, on August 22, 2012, he was improperly terminated as a Manager and Certified Fire Safety Director by the New York City Department of Homeless Services [City] because, he refused to make false certifications. By letter dated November 26, 2012, the City acknowledged receipt of the claim. In June 2013, Castro commenced this action, contending that he had been subjected to “an improper termination claim under Labor Law §740 (the Private Sector Whistleblower Law).” and sought reinstatement and monetary damages.

The City moved to dismiss the complaint on the grounds that:

[1] Labor Law §740 is inapplicable to public employees; and

[2] Even if Castro had asserted a claim under Civil Service Law §75-b (the Public Sector Whistleblower Law), it would fail because his allegations did not satisfy the statutory prerequisites.

Castro then amended his complaint, repeating his original factual allegations to assert an improper termination claim under Civil Service Law §75-b, for which he sought only monetary damages.

Supreme Court granted the City's motion to dismiss the amended complaint on the grounds that: (i) the notice of claim did not give the City adequate notice of plaintiff's Civil Service Law §75-b claim because the statute was not cited and "improper termination" could be premised on a myriad of state and federal statutes or common law, each of which would require different inquiries during the investigation; and (ii) Castro had waived his right to pursue the Civil Service Law §75-b claim because he elected to initially commence the action pursuant to Labor Law §740 but withdrew that claim.

In response to Castro’s appeal the Appellate Division quickly disposed of the issue that Castro had “waived” his Civil Service Law §75-b rights, holding that Supreme Court “erred in finding that, by commencing this action pursuant to Labor Law §740, [Castro] waived his right to pursue his claims under Civil Service Law §75-b.” Accordingly, said the Appellate Division, it must consider whether a notice of claim is required for a Civil Service Law §75-b claim that seeks monetary relief and, if so, whether Castro’s claim is barred because he did not cite §75-b in his notice of claim.

General Municipal Law §50-e(1)(a) requires service of a notice of claim within 90 days after the claim arises "[i]n any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation." General Municipal Law §50-i(1) precludes commencement of an action against a city "for personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city," unless a notice of claim has been served in compliance with §50-e.

In Mills v County of Monroe, 59 NY2d 307, cert denied 464 US 1018,  the Court of Appeals held that an employment discrimination claim brought against a county under the Human Rights Law is subject to County Law §52(1)'s notice-of-claim requirement. Subsequently, in Margerum v City of Buffalo (24 NY3d 721 , the Court of Appeals held that the notice of claim requirements of General Municipal Law §§50-e and 50-i did not apply to the firefighters' disparate treatment racial discrimination claim under the New York State Human Rights Law.

In reaching this determination, the court stated  that "[h]uman rights claims are not tort actions under 50-e and are not personal injury, wrongful death, or damage to personal property claims under 50-i. Nor, said the court,  "do we perceive any reason to [so] encumber the filing of discrimination claims" in which a municipality is alleged to have violated the State’s Human Rights Law."

Considering the Margerum decision, the Appellate Division ruled that a notice of claim is not required for a Civil Service Law §75-b claim, explaining that “[a]s with the Human Rights Law claims that were the subject of Margerum, Civil Service Law §75-b claims are not tort actions under General Municipal Law §50-e and are not personal injury, wrongful death, or damage to personal property claims under General Municipal Law §50-i.

Thus, said the court, “there is no reason to encumber the filing of a retaliatory termination claim” pursuant to Civil Service Law §75-b, indicating that Civil Service Law §75-b shares significant similarities with the Human Rights Law.

Further, in Tipaldo v Lynn 76 AD3d 477 , affd 26 NY3d 204, the Appellate Division, First Department, “observed that retaliatory termination claims are analogous to the Human Rights Law for purposes of compensation because §75-b, Labor Law §740 and the Human Rights Law all have "the goal of remediating adverse employment actions which, if allowed, would undermine an important public policy."

In any event, the Appellate Division held that even if a “Notice of Claim” was required, the notice of claim filed by Castro was sufficient to allow the City to investigate his Civil Service Law §75-b claim, notwithstanding its not citing the section. Further, the test of the notice's sufficiency is whether it includes information sufficient to provide a municipal authority with an opportunity to investigate the claim and a court must look to “the circumstances of the case, and is not limited to the four corners of the notice of claim.”

Civil Service Law §75-b forbids retaliatory or personnel action concerning compensation, promotion, transfer, or evaluation of performance, by public employers against their employees who disclose to a governmental body information regarding violations of regulations that would present a specific danger to public health or safety. In this instance although Castro “did not specifically reference the ‘whistleblower’ claim, the notice of claim included enough information for the City to investigate the §75-b claim.”

Noting that the City was certainly aware that Castro's job duties at the Department of Homeless Services (DHS) required him to inspect homeless shelters and to certify that they were safe, a further investigation would have uncovered that he “refused to certify false statements about the safety of homeless shelters he inspected, that he complained to his supervisors about it, and that he was terminated after doing so.” In addition, said the court, the City failed to establish what prejudice, if any, it suffered as a result of the alleged defect in the notice of claim, which clearly alerted it to Castro's contention that his termination was improper.

The Appellate Division also rejected the City argument that Castro’s amended complaint must be dismissed because he failed to state a cause of action under Civil Service Law §75-b notwithstanding the fact that Castro “allegedly advised his immediate supervisor and an Assistant Commissioner of the alleged violations” because these individuals were not the "appointing authority" at DHS, and Castro never contended that he reported the alleged government misconduct to a governmental body outside of DHS.

In the words of the court, “[t]hese arguments are unavailing” as the language used in the statute is “a governmental body," which includes "a public employer," rather than "another" government body or "another" public employer, suggesting that “an employee is protected if he reports internally and/or externally.”

The Appellate Division also noted that Civil Service Law §75-b(2)(b), which then provided* that "For purposes of this subdivision, an employee who acts pursuant to this paragraph [requiring a good faith effort to first inform an appointing authority] shall be deemed to have disclosed information to a governmental body under paragraph (a) of this subdivision." The court said that the text “also suggests that an employee need not also report to an external agency” and the legislative history states that "[t]he employee receives the same protection when giving this notice [to the appointing authority] as if he or she had disclosed information to a governmental body."

Also noted by the Appellate Division was the Court of Appeals’ instruction in Tipaldo v Lynn, 26 NY3d 204, that "courts should use their discretion in determining whether the overall actions of the plaintiff constitute a good faith effort to report the misconduct" and here the overall efforts of Castro constitute a good faith effort to report the alleged misconduct as he complained not only to his supervisor but also to the Assistant Commissioner about DHS' attempts to cover up unsafe conditions at homeless shelters.

Finally, the Appellate Division cited Medina v Department of Educ. of the City of N.Y., 35 Misc 3d 1201, in which the trial court held that "[I]nternal complaints to the plaintiff's supervisor will be held sufficient to satisfy Civil Service Law §75-b absent a showing by the agency defendant as to why the complaint to the supervisor was insufficient, or that the petitioner could have or should have notified someone else in order to obtain corrective action".

The bottom line: The Appellate Division unanimously reversed Supreme Court order which had granted the City’s motion to dismiss Castro’s amended complaint on the law.

* The requirement that an employee first make a good faith effort to inform the "appointing authority" is set forth in Civil Service Law §75-b(2)(b), which provision was repealed on December 28, 2015, which was after the order appealed by Castro was rendered. Castro conceded that §75-b(2)(b) is applicable because it was in effect at the time he commenced the action. 

The decision is posted on the Internet at:


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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