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February 15, 2018

A violation of a agency policy or procedure does not constitute an actual violation of law, rule or regulation sufficient to sustain a cause of action within the meaning of §740(2) of the Labor Law

A violation of a agency policy or procedure does not constitute an actual violation of law, rule or regulation sufficient to sustain a cause of action within the meaning of §740(2) of the Labor Law
Young v Madison-Oneida Bd. of Coop. Educ. Servs., 2017 NY Slip Op 08960, Appellate Division, Fourth Department

The Plaintiff in this action was formerly employed by Madison-Oneida Board of Cooperative Educational Services (BOCES) as Assistant Director of Alternative Education. When Plaintiff's term of appointment expired BOCES did not reappoint Plaintiff to the position.

Plaintiff then commenced this action alleging unlawful retaliatory action under Labor Law §740(2), the "whistle-blowers' statute," by BOCES and the individual defendants, who were BOCES employees during the period of Plaintiff's employment there.

Supreme Court granted BOCES' motion for summary judgment, which ruling the Appellate Division affirmed. The Appellate Division explained that to prevail in the Labor Law §740(2) cause of action, Plaintiff had the burden of proving that BOCES retaliated against him because he "disclose[d] or threaten[ed] to disclose to a supervisor or to a public body an activity, policy or practice of [BOCES] that [was] in violation of law, rule or regulation which violation creat[ed] and present[ed] a substantial and specific danger to the public health or safety" or because he "object[ed] to, or refuse[d] to participate in any such activity, policy or practice in violation of a law, rule or regulation."

BOCES, however, established as a matter of law that the conduct on their part that was alleged by Plaintiff did not amount to violation of law, rule or regulation under the statute. Petitioner's complaint of BOCES alleged wrongful conduct, said the court, even had Plaintiff proven such wrongdoing "did not constitute an 'actual violation of law to sustain a cause of action' under Labor Law §740(2).

The Appellate Division opined that "BOCES alleged violations of its internal procedures do not qualify as a law, rule or regulation under the statute."

The decision is posted on the Internet at:

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